114 So. 2d 450 | Ala. | 1959
This is an appeal by the defendant from a final judgment of the circuit court of Coffee County rendered on a jury verdict in favor of plaintiff. The suit was brought pursuant to § 119, Tit. 7, Code 1940, for the wrongful death of plaintiff's minor daughter in an automobile accident. The complaint, consisting of one count, charges simple negligence.
The questions argued and presented relate to the following: (1) The overruling of defendant's motion to discharge the jury selected to try the case; (2) the refusal of defendant's requested affirmative charge with hypothesis; (3) the overruling of defendant's motion for a new trial on the ground that the verdict was against the great weight and preponderance of the evidence; and (4) the refusal of defendant's requested charges B and X. It is our view that none of these constitutes ground for reversal.
Appellant does not contend that juror Clark was subject to challenge for cause under the provisions of § 55, Tit. 30, Code 1940, as amended by Act No. 260, appvd. Aug. 23, 1955, Acts 1955, Vol. I, p. 605. His position is that he was entitled to the information concerning Clark's relationship with the wife of plaintiff's attorney before striking the jury; that Clark's failure to respond to the questions propounded to the jurors seriously prejudiced him in selecting the jury. It seems to us that the circumstances presented a problem to be resolved by the trial court in the exercise of a sound judicial discretion. We cannot say that there was an abuse of such discretion in overruling appellant's motion. A significant circumstance is that defendant's attorney admittedly had knowledge (although it did not occur to him at the time) of the relationship between juror Clark and plaintiff's attorney.
Appellant argues that he was entitled to the affirmative charge for the reason that appellee's negligence in parking his car in violation of § 25, Subsec. (a), Tit. 36, Code 1940, was the proximate cause of the accident. But, as we see it, the question as to appellee's negligence in this respect (assuming, without deciding, that the act of parking constituted negligence per se) is not determinative. Our view is that the evidence presented a typical case for the jury's determination as to whether appellant was negligent and, if so, whether such negligence was the proximate cause of the accident.
It was not error to refuse to appellant his requested affirmative charge with hypothesis.
Nor can we say that the verdict is against the great weight and preponderance of the evidence.
A charge similar in form to charge B was approved in Louis Pizitz Dry Goods Co. v. Cusimano,
Charge X is argumentative and misleading. For these reasons, if for no other, its refusal was not error.
Affirmed.
LIVINGSTON, C. J., and LAWSON and SIMPSON, JJ., concur. *539