Terry v. Nelms
54 So. 2d 282
Ala.
1951
Check Treatment

*1 54 So.2d 282

TERRY v. NELMS.

8 Div. 567.

Supreme Court Alabama.

May 17, 1951. 28, 1951.

Rehearing Denied June Oct.

Further Denied

292 Athens, Patton, and D. U. R. B. Patton Decatur, appellant. Lynne, for

and S. A. brought against appel- appellant suit The injuries property personal

lee for collision of growing out damage truck at with defendant’s automobile city highway intersection in street Decatur, The usual conflict- Alabama. here, of evidence obtained ing tendencies trials, but view of our as most necessary not be it will conclusions judgment From the de- discuss it. appealed. fendant, the importance prevailed reversible whether patently two the defendant 4 requested charges, numbers and 9. We reproduce reporter 4 and the will here you reasonably If out “4. will set evidence in case that this satisfied plaintiff Terry guilty and that this the occasion slightest contributed in the de you damage injury should gree to his your in his favor but not render verdict should favor of the defend verdict ant.”

Concededly hypothesize failing to proxi to bar injuries. mately contribute Such a concurring injury merely a cause and not remote occasion condition of the or antecedent plea injury be available under a Hayes negligence. v. Alabama Co., Ala. Power 239 Kelly Hanwick, 228 Ala. So. 269; Dudley v. Alabama Utilities Service Peach, Shanks, Decatur, Caddell H. Burton J. appellee. May, 212 & Sons Co. Champion, Hines Thomas, 511; McCaa v. Knitting Reaves v. Anniston Mills, Newsome or dam- Ala.App. age. applies v. Louisville throughout That I 102 So. 61. anything say” (emphasis supplied) *3 effectually any prejudice eradicated which subject Charge number to the same 9 is prevailed by have giving the defect. charges there considered. holding of this court The consistent pro that to reverse must be been bar, however, In the no such jury. in such a misdirection to the nounced explanation was made the trial court Thomas, supra; Dudley Ala v. v. McCaa and, indeed, the same vice inhered in a Co., supra; New bama Utilities Service portion of its oral instruction regards as Co., supra; R. v. N. some Louisville & contributory negligence, where the court Ry. Laney, 199 A. L. Co. v. Seaboard charged: “Nor does the defense contrib Thompson Duncan, v. 654, utory negligence, which I will later define Bottling v. Ne-Hi Carter you, prevent to a recovery, if it is not the 324, 146 So. Brooks v. 226 Ala. proximate cause, or if it does not contribute Rowell, 903; Kelly in some degree to the injury or damage.” Hanwick, supra. v. second alternative the excerpt pretermits proximate causation. This in True, counsel, argued by able as struction, rather than remedying the defect prop instructions which there were other in the two charges, approved contributory negligence, erly charged on illustrate, them. To the pre same situation precedent has been established also but the Chapman in the case vailed v. Black giving such an “erroneous that error in the more, App. 425, 772-773, Ohio 177 N.E. that, cured the fact was not the where court was considering an instruc charge, oral or in court’s other tion in the alternative that the contributing request given at the special charges negligence should have been prox either a defendant, jury properly instruct were imate cause or must have contributed in the only as negligence proximately ed that slightest degree to the accident. In consid to his could be contributed ing error, the court “By said: the de v. Ry., P. Sea Birmingham L. Co. ered. & request fendant’s jury No. was in born, Roberson 168 Ala. structed that if the was negligent 837; Ala., State, T. v. 183 Ala. any respect, and ‘such negligence was the 80, 87 So. Huggins, Co. proximate accident, cause of the or con Hunt, Ry., P. Birmingham L. Co. v. tributed thereto decree,’ in the slightest Dudley Ala 918.” 200 Ala. verdict should be returned for the defend Co., supra, 225 Ala. bama Utilities Service ant. 531, 532-533, course, “Of it is fundamental that con- argu answering The defendant’s tributory negligence part on the predicated also on plaintiff will not recovery bar his unless injury. McGough such negligence is a or direct Corp. Reynolds, 35 So.2d injury. thought position. to sustain easily The case at hand is distin to quotation “The instruction from which guished. positively just Here in has been made indicates prin- that this neg structions the law contributory ciple appreciated of law was probably ligence jury. They were were covered; undertaken but the instruc- fundamentally in which circumstance tion is form, in the alternative justifies we have said a reversal is in a finding would be barred In the recovery order. if negligence his contributed incomplete, held but considered were to be the slightest degree to cause the accident. incorrect, altogether not and that the portion court’s That of the instruction should have person responsible oral “no that read as him ground unless on the of contributory negligence case,’ directly us not that in the contributed fore proximately unless thought they not the being in the since same —as injury. The instruction co jury been out on deliver- had authorize disjunctive form would that ance. it found plaintiff if against the find cause of was the many pro years this court has For the evidence injury, it found from or if error in nounced reversible slight- in' the contributed that his hereinabove, giv their condemned where injury. degree est injuriously party affected the ing error in is of the “This court given. And since the case against whom *4 prejudicial 1 was giving instruction No. given writ the oral and the plaintiff.” gave correct and ten both incorrect applicable law instructions on the ap- contended remaining errors be negligence, we are bound to pear so vital and will not to be principle governed stated of the retrial, not treat we a will not occur on Dudley Alabama Utilities Service Co. of them. and a reversal. order however, noted, are For the Gillespie 2. The case of v. Woodward judgment should strongly convinced Iron cited So ordered. reversed. justifying the omission of remanded. Reversed and contributory negligence causation from a already inap charge, has been held to be LIVINGSTON, J., BROWN and and C. Bradshaw, posite a case action Plos STAKELY, JJ., concur. Hoskins, ser Rowe v. there 625. The court out that On Gillespie case the action was “for damages resulting nuisance, in volving negligence, and is not earn- response is in deference This presented pertinent here” rehearing, counsel on of able estness (contributory negligence). ac- took full consideration we original advanced propositions now of the count 3. untenable is ar Likewise then cause but were a reversal avert plaintiff’s requested gument that because ar- disagreement with and now charge- given, 4 was which it is contended gument. causation, omitted the idea of very careful re-examination error to reverse be averted for

On a hold: aforestated numbered case we and 9 for defendant. Without case, supra, correctness, non, plaintiff’s ing the vel authoritative; is the nor is not charge 4, if it dif was bad for a pronounce- with the conflictory patent ferent illegality reason from the im Dudley Alabama Util- minent in charg defendant’s said two 'applying supra. But in Service ities estoppel argued principle of to- es. So the injury, as was the rule ruling below would event sustain particular case, the done inapplicable. own rec- judged on its must be in hand reconsideration, a careful we must On long aptly ago observed As was so ord. say we think our is sound. v. Saun- Ogden Marshall Chief Justice extended, Opinion ap- L.Ed. 647: and ders, corrected 12 Wheat. posi- rehearing overruled. general plication rule “It is authority is coextensive decision tive LIVINGSTON, J., is made.” C. on which-it BROWN the facts only with STAKELY, JJ., judge the record be- concur. instantly we So