10 So. 2d 148 | Ala. | 1942
The action was for personal injuries received in a collision between automobiles on a public highway. There was verdict for defendant. The court granted a motion for new trial, and defendant appeals.
New trial was granted upon the ground that error had intervened in giving certain written charges requested by defendant.
Whether there was reversible error in the giving of these charges, or any of them, is the inquiry presented by briefs on appeal.
The complaint counted on simple negligence, and on wanton act of defendant as the proximate cause of the collision. The plea was in short by consent in usual form.
The event occurred on U.S. Highway 31, within the town of Hartselle. Three *374 cars were involved, all registered in other states, and bound for points beyond this state. Mrs. Heep, the plaintiff, was a passenger in a Chevrolet car, owned and driven by her son, Lt. Heep. This car was headed south. Her injury was received in a collision with a Dodge car, headed north, owned and driven by Mr. Seitz, the defendant. His wife was a passenger with him. This car was trailing a Ford car, driven by Mr. Bagby of Kentucky. The collision occurred on a two-way pavement, some 18 feet wide, at a point just south of the entrance to a curve to the left looking north.
Evidence for defendant tended to show the north bound cars had stopped at a traffic light at Main Street several hundred feet south of the point of collision; that they were proceeding at a speed of 20 to 25 or 25 to 30 miles per hour in their lane of travel, well clear of the center line; that the Heep car, south bound, rounded the curve to its right at a speed of 50 to 60 miles per hour, swung across the center line, sideswiped the Ford car, then struck the Dodge car head-on, some 40 feet to the rear of the Ford. Defendant testified he first saw the Chevrolet car about when it reached the Ford, immediately applied the brakes and came to a near stop some 2 feet east of center line at the moment of the impact. Other evidence tended to show the pavement was wet, that the south bound car slowed down to 30 or 35 miles per hour, and skidded. The rear end of this car struck the side of the Ford.
Evidence tended to show obstructions cutting off the view of the highway on rounding the curve from the north for a distance of much less than 500 feet, probably 150 feet or less; likewise obstructions to the view of a north bound car nearing the curve.
Evidence for plaintiff tended to show the defendant assayed to pass the Ford car, speeded up and entered the lane for south bound cars.
Lt. Heep, among other things, testified that in passing through the town and approaching the point of collision his speed was 20 to 25 miles per hour, that discovering the Dodge car cutting across into his lane of travel, as if to cross the road, he veered to the left with a view of passing between the Ford and Dodge, contacted the Ford about the center line, then the Dodge which at the instant was cutting back toward its lane of travel.
There was much divergence, or conflict in the evidence not to say inconsistence, in the testimony of one or more witnesses.
We would be clearly understood as holding or intimating nothing as to the weight of the evidence. The above merely notes certain tendencies which appear to suffice in considering the written charges under review. Defendant's given charge No. 9 reads: "If you are reasonably satisfied from the evidence in this cause that on the time and occasion of plaintiff's injury, that John Heep was guilty of negligence and that his negligence was the sole and proximate cause of plaintiff's injury, then I charge you gentlemen of the jury, you should return a verdict in favor of the defendant. Endorsed: 'Given, Seybourn H. Lynne, Judge.' "
Given charges 8 and 11 were to like effect. The giving of each of these charges, was, on motion for new trial, held error, and ground for new trial. These are of the class of "Sole proximate cause" instructions, which have been frequently considered by this court.
In Birmingham Railway, Light Power Co. v. Ely,
In Karpeles v. City Ice Delivery Co.,
In Roberts v. Louisville Nashville Railroad Co.,
See, also, 38 Am.Jur. p. 1080, § 366; Mazziotte v. Bridgeport Waterbury Passenger Service,
Other cases, later than the Karpeles case, supra, disapproved such instructions, where an issue of wantonness or subsequent negligence was presented by pleadings and proof.
In Boyette v. Bradley et al.,
This holding, approving Renfroe v. Collins Co.,
This ruling is again challenged by appellant as unsound.
It cannot be questioned that such charge is technically an exact statement of the law applicable to the case at bar as presented by tendencies of the evidence. If the negligence of the driver of the car in which plaintiff was a passenger was the "sole and proximate cause" of the collision and consequent injury no wanton act or subsequent negligence of defendant could have been a proximate cause, exclusive or concurrent. The rule we have declared can rest only on the view that such charge centers the attention of the jury on initial negligence of the driver of the car in which plaintiff was a passenger, and, for practical purposes, leads them to disregard issues of wantonness or subsequent negligence of defendant submitted to the jury under other and proper instructions. If the matter were of first impression, this writer would treat such charge as misleading at most, and therefore, subject to refusal without error as in Lindsey v. Kindt, supra.
The court, however, adheres to the rule of Boyette v. Bradley et al., now often approved.
We are of opinion there was some evidence warranting a submission to the jury of the issues under the wanton count.
If an experienced motorist on a two-lane trunk highway suddenly and needlessly attempts to pass a car going in the same direction at a point where one is about to enter a curve, and the view is so obstructed that, while looking ahead, he does not discover a car approaching in the opposite direction until within less than 100 feet, it cannot be said no reasonable inference can be drawn of a conscious knowledge of probable danger to others moving in their lane of travel, which he has intentionally blocked. Two cars approaching each other at a speed of 30 miles per hour each move 88 feet per second. Some evidence tended to show conditions as just outlined. Whether true or not, was for the jury.
Other charges given for defendant, and held error on motion for new trial, are set out in assignments of error 6 and 7. These deal with speed rules, General Acts 1927, Section 51(a)(b), pages 366-368 (Michie's Code, 1397(53) subd. (a) and (b). They need be considered only for purposes of another trial. Suffice to say we find no sound reason to depart from the construction of these rules of the road declared in McCaleb v. Reed,
Affirmed.
All Justices concur. *376