85 So. 511 | Ala. | 1920
In discussing charge 5 (the giving of which, at the request of the defendant, formed the basis of the order for a new trial), counsel for appellant insist that the evidence offered by the plaintiff, if believed, made out a case of wantonness, and invokes the doctrine announced in Louisville Nashville R. R. Co. v. Perkins,
The evidence has been carefully considered and will not be here discussed in detail. While some of the testimony for the plaintiff was doubtless sufficient for the submission of the wanton count to the jury for consideration, yet in passing upon the correctness of this charge it must be kept in mind that the jury must consider the entire evidence in the cause, and when this is done it will be found that the issue of subsequent negligence was also properly submitted for their consideration. It is, of course, a familiar rule that under a count for simple negligence recovery may be had for subsequent negligence. L.
N. R. R. Co. v. Calvert,
Indeed, a reading of the record is rather persuasive that the cause was tried largely upon the theory of subsequent negligence. The plaintiff himself did not insist that he had observed the rule of stop, look, and listen, for he admits that he merely slowed his car down to about 4 miles an hour. For this failure on his part to preclude him from a recovery upon simple or initial negligence, such must have contributed proximately to the injuries. The "negligent act, in order to defeat a recovery, must have been the proximate cause, * * * not the remote cause, or mere condition." So. Ry. Co. v. Jones,
Subsequent negligence, of course, recognizes prior contributory negligence on the part of the plaintiff, and such prior contributory negligence, therefore, is neither the cause of the injury nor contributory thereto, but merely the cause or condition upon which the subsequent negligence rests. Cent. of Ga. R. R. Co. v. Foshee,
The charge here in question was to the effect that, if the jury believed that the plaintiff, before attempting to cross, did not stop, look, and listen for the train, and that by reason of such failure plaintiff's car was injured, then he could not recover. Whether aside from the question of negligence, this charge would be erroneous for using the words "by reason of," instead of "proximate cause," we need not determine. The trial judge reached the conclusion that, in view of the evidence as to subsequent negligence, the charge was so misleading as to have probably injuriously affected plaintiff's cause, and for this reason granted the new trial. In this we are of the opinion he correctly ruled. The charge lays particular stress on contributory negligence on the part of plaintiff, confessedly true as to the doctrine of stop, look, and listen, but ignores entirely any theory of recovery upon the principle of subsequent negligence, and was easily calculated to mislead the jury in believing that contributory negligence affected the question of liability based upon subsequent negligence. The failure of the plaintiff to stop, look, and *229 listen might have been a condition giving rise to the situation, which afterwards brought into play the doctrine of subsequent negligence, and in that manner might have been — in the language of the charge — "a reason for the injury," yet, of course, was not the proximate contributory cause thereof.
We are unwilling to hold that the court incorrectly ruled in granting the new trial upon this ground (Coleman v. Pepper,
Affirmed.
ANDERSON, C. J., and McCLELLAN and SAYRE, JJ., concur.
