152 So. 2d 156 | Ala. | 1963
Appeal by the plaintiff from a judgment on a jury's verdict in favor of the defendant in an action for personal injuries.
The complaint, charging simple negligence in blocking a public roadway, alleged that appellant was riding in an automobile being driven by another person on Alabama Highway 75, that they saw a bundle of lumber tied together lying crossways in the highway, and as they approached the lumber they observed a pickup truck (appellee's) coming toward them; the driver of the car slowed almost to a stop; and as they were slowing they were hit from the rear by another car. Various injuries were alleged to have been proximately caused by the negligence of appellee in blocking the road with the lumber.
It appeared that appellee had purchased the lumber, which was loaded on the rear of his pickup truck by mill employees, and he was returning home with it. He had noticed that the lumber was missing from the truck and was returning at the time of the wreck to pick it up. Appellee was driving the pickup truck that was meeting the car in which appellant was riding.
It appeared, or the jury could have found, that the lumber was tied in a bundle consisting of three small pieces of molding about 12 feet long. A section of the same or similar pieces was received in evidence as part of appellee's case
We address ourselves to the assignments of error which are substantially argued in appellant's brief.
Appellant insists that the trial court erred in refusing to give the following charge:
"The Court charges the Jury it is the duty of a person, as a matter of Law when he is hauling lumber along the Highway of this state on a motor vehicle, to tie down or fasten said lumber so it will [sic] fall off along on [sic] on the Highway."
The charge is obviously bad. It omits a word necessary to its meaning and is therefore elliptical. It is proper to refuse an elliptical charge. Bevill v. Wilkins,
Appellant further insists that the trial court erred in refusing to give the affirmative charge with hypothesis for appellant. In considering this contention, we are required to view the evidence in the light most favorable to appellee. Textile Mills, Inc. v. Colpack,
Appellant urged in her motion for a new trial and argues here that the jury's verdict in favor of appellee is against the great preponderance of the evidence. The verdict of the jury is of course presumed to be correct and will not be reversed unless after allowing all reasonable presumptions of its correctness, the preponderance of the evidence is against the verdict, and is so decided as to clearly convince the court that it is wrong and unjust. Tallapoosa River Elec. Co-op, Inc. v. Burns,
Affirmed.
LIVINGSTON, C. J., and GOODWYN and COLEMAN, JJ., concur.