179 So. 250 | Ala. | 1938
Motion by plaintiff for a new trial was filed November 13th thereafter, which was duly continued to November 28, 1936, at which time an order was entered for submission on this motion, and the same "taken under advisement." On February 27, 1937, the motion was overruled, and the bill of exceptions presented May 25, 1937.
Appellee insists that the motion lapsed because carried over into another term of the court, and of consequence no valid judgment on the motion could then be entered (citing Richards v. Williams,
Under section 6667, Code 1923, there were two terms of the circuit court, as follows: First, from the first Monday in January to and including the last Saturday of June of every year; and, second, from the first Monday after the Fourth of July to and including the last Saturday before Christmas of every year. But this section was amended so as to eliminate these terms, and, as amended, the "Circuit Courts of the several Counties of the State shall be open for the transaction of any and all business, or judicial proceedings of every kind, at all times." General Acts, Ex.Sess. 1936, p. 32.
But appellee would avoid the effect of this amendatory act by applying the thirty-day limitation as to judgments in section 6670, Code of 1923. That section is not, however, here involved.
The motion in the instant case was seasonably filed, and continued to date of submission when it was taken under advisement. This submission and taking the motion under advisement operated to keep the motion alive until the end of the term, as held in Greer v. Heyer,
As now amended, section 6667 of the Code abolishes the matter of terms of court, and we think the case of Greer v. Heyer, supra, and others of like tenor, should here control. Under these decisions the motion was kept alive and the hearing regarded as pending, the trial of the motion considered as constructively in progress until judgment thereon. So considered, the bill of exceptions was presented in time, and the motion to strike will accordingly be here denied.
The whole case turned upon the one question of fault in operation of the two motor vehicles. The count upon which, for the plaintiff, the case was tried, sought recovery for simple negligence, and there was no plea of contributory negligence; the only plea being the general issue. *351
No details of the evidence need be here narrated.
Briefly stated, it is plaintiff's theory that as the Williams' car was being driven up the hill in the rain on the proper (that is, the right) side of the road, defendant's truck, approaching from the opposite direction, cut sharply across the road into the path of the Williams' car, which was then cut sharply toward the center to avoid the fatal collision.
Defendant contends, on the contrary, that his truck, properly equipped with brakes, was proceeding at a moderate speed down the hill on its correct side of the highway with the Williams' car approaching on the same side, that is, on the wrong side of the road for the Williams' car, and that as soon as the driver of the truck discovered the Williams' car would not get back to its proper place on the road, he cut abruptly to the left in order to avoid a head-on collision.
Evidence was offered by the parties in support of their respective contentions, and was in sharp conflict for the jury's consideration.
For a reversal of the judgment, plaintiff rests largely upon the action of the trial court in giving, at defendant's request, written charge A-9, which appears in the report of the case, relating to the question of the sole proximate cause of the accident.
To fasten liability upon defendant any negligence on his part must, of course, be the proximate cause of the injury. But, "if an injury has resulted in consequence of a certain wrongful act or omission, but only through or by means of some intervening cause, from which last cause the injury followed as a direct and immediate consequence, the law will refer the damage to the last proximate cause, and refuse to trace it to that which was more remote." Alabama G. S. R. Co. v. Vail,
Here, plaintiff's intestate is charged with no negligent conduct. There was no plea of contributory negligence, nor was there any charge of wanton conduct. The pleadings and proof presented but one issue; whether or not defendant was guilty of negligence which proximately produced the injury.
Defendant answers by saying that he was not only guilty of no negligence, but that in truth and in fact the intervening efficient and proximate cause of the collision resulting in the death of plaintiff's intestate was the negligent conduct of Williams in the operation of his Plymouth car; and that, at most, whatever was done by him in the operation of his truck merely furnished the condition or gave rise to the occasion by which the injury was made possible. Garrett v. Louisville N. R. Co., supra.
Given charge A-9 but gave emphasis to this theory of the law as applicable to the pleadings and proof in this case, and, confessedly, finds support in Birmingham Ry., L. P. Co. v. Ely,
In the latter case, Karpeles v. City Ice Delivery Co., supra, plaintiff's intestate was a guest passenger on a motorcycle, and the following statement in the opinion is equally applicable here: "If defendant's agent exercised due care, then of course the death of plaintiff's intestate must be referred to the negligence of the driver of the motorcycle, or, in the absence of that, to inevitable accident."
Counsel for plaintiff, however, insist these authorities have been overturned by our subsequent decisions; citing Renfroe v. Collins Co.,
We have examined each of these cases with due care and fail to find any qualification of the Karpeles and Ely Cases, supra, (here directly in point) in so far as they are applicable to a situation as here presented. There was first a differentiation, but no qualification, of the Karpeles Case in Renfroe v. Collins Co.,
In Lindsey v. Kindt, supra, there was a wanton count, and the opinion discusses that question in relation to the refusal of the "sole proximate cause" charge, asked by defendant.
And in Strickland v. Davis,
And in Davis v. Morgan County,
The observation in the Boyette Case, supra, as to any apparent conflict between the Karpeles Case, supra, and that of Grauer v. Alabama G. S. R. Co., supra, is not of any material consequence here, as the Grauer Case concerned the matter of a wanton count, not here presented.
As we have observed in each of the cases upon which plaintiff lays stress, a wanton count was involved, and what would be the conclusion concerning the giving of such a charge, where only contributory or subsequent negligence was involved, we leave an open question to be determined when the matter is directly presented.
In the instant case the given charge injected no new issue into the case, nor was it in fact calculated to mislead. Plaintiff argues that it was faulty or misleading to a prejudicial extent because of the theory of subsequent negligence. But assuming, without deciding, merit in this insistence, it would be inapplicable here. Subsequent negligence presupposes negligence on the part of plaintiff, 45 Corpus Juris 988; Seaboard Air Line R. Co. v. Laney,
Nor do we consider that the use of the word "the" preceding negligence in the charge in any manner misled the jury into an understanding that negligence of Williams was assumed, but if thought misleading plaintiff could have asked an explanatory charge. Whether its use would have justified its refusal is a different matter, not here necessary to discuss. It was very similar to the expression in the approved oral charge of "the act," as noted in Davis v. Morgan County, supra. Clearly enough a reversal could not here consistently be predicated thereon.
Nor can error to reverse be rested upon the action of the court in giving charge A-7, requested by defendant. What was said in Hampton v. Roberson,
Nor can reversible error be rested upon the refusal in evidence of plaintiff's photographs of the highway taken just a few days before the trial, and long after the accident and after there had been many material changes made in the highway, which was in preparation for such improvement when the accident occurred. Moreover, it could hardly be insisted that the photographs which were in evidence failed in any manner to give a very clear general outline of the highway sufficient in all respects for an intelligent consideration of the case by the jury.
We have discussed the assignments of error argued, and find no error to reverse.
The judgment will accordingly be here affirmed.
Affirmed.
ANDERSON, C. J., and BOULDIN and FOSTER, JJ., concur. *353