Opinion
8 Div. 540.
May 17, 1951.
Appeal from the Circuit Court, Marshall County, J. S. Stone, J.
These charges were given for plaintiff:
15. The Court charges the jury that even if you find from the evidence in this case that the plaintiff was guilty of contributory negligence, yet if you further find from the evidence that defendant became aware of plaintiff's peril in time to avoid inflicting the injury by the proper use of preventive means at its command, yet inadvertently or negligently failed to resort to such means, the plaintiff is entitled to recover.
16. The Court charges the jury that contributory negligence by the plaintiff in this case which will bar her recovery must be such as that it caused the injury complained of or proximately contributed thereto, and even though you find from the evidence that the negligence of the plaintiff, if there was such negligence, was merely the cause of a condition upon which the negligence of the defendant or his agent in failing to use the means within his power to avoid the injury after becoming aware of the plaintiff's peril, operated as the sole proximate cause of the injury complained of, such negligence on the part of the plaintiff, if you find that there was such negligence, will not prevent a recovery.
17. The Court charges the jury that if they are reasonably satisfied from the evidence that the defendant's servants or agents consciously failed, after becoming aware of the peril of the plaintiff, to do all in their power with the means at hand to avoid injuring the plaintiff, and the plaintiff's injury was the proximate cause of such failure, then the servants or agents of the defendant would be guilty of wantonness, and the jury will find for the plaintiff, even though the jury should believe that plaintiff was himself guilty of contributory negligence which proximately helped to bring about his injury.
18. The Court charges the jury that the burden of proof rests upon the plaintiff in this action to prove that these injuries received, were on account of the negligence of the defendant. He starts out with that burden of proof. If he makes a prima facie case before you, then the burden of proof is shifted and it rests upon the defendant to make good his special plea of contributory negligence.
This charge was refused to defendants:
"D. Gentlemen of the jury if you are reasonably satisfied from all the evidence that L. W. McNear was negligent in his operation of the Martin car, and that such negligence proximately contributed to the plaintiff's injuries, then your verdict must be for the defendants."
Marion F. Lusk, Guntersville, for appellants.
It was reversible error to allow plaintiff's witness, in answer to the question "Were there any skidmarks showing where the car wheels themselves had skidded?", to testify: "there were some skid marks there where they had been pulled this way", the answer not being responsive and in addition stating a conclusion of the witness. Feore v. Trammel, 212 Ala. 325, 102 So. 529; Birmingham R. E. Co. v. Jackson, 136 Ala. 279, 34 So. 994; White v. State, 12 Ala. App. 160, 68 So. 521; Vredenburgh Saw Mill Co. v. Black, 251 Ala. 302, 37 So.2d 212. Plaintiff's given charge 15, was prejudicial to defendant in allowing the jury to "find", instead of requiring them to be reasonably satisfied. 18 Ala. Digest, Trial, 237(3); Alabama City G. A. R. Co. v. Bessiere, 190 Ala. 59, 66 So. 805; Goodwyn v. Gibson, 235 Ala. 19, 177 So. 140. The giving of plaintiff's written charge 16 was error, since it told the jury that plaintiff's own negligence must either have caused the injury complained of, or proximately contributed thereto, giving the power to adopt either principle. Fail v. Gulf States Steel Co., 205 Ala. 148, 87 So. 612; 102 A.L.R. 425; Birmingham So. R. Co. v. Harrison, 203 Ala. 284, 82 So. 534; Pollak v. Davidson, 87 Ala. 551, 6 So. 312. Plaintiff's given charge No. 17 was error, since it pretermitted a consciousness on the part of defendant that the consequence would produce injury to the plaintiff. Granberry v. Barter, 209 Ala. 257, 96 So. 148. Plaintiff's given charge 18 was error, since it narrowed the issues within the limits of the plea of contributory negligence, ignoring the issues raised by the defendants' general denial. 18 Ala. Digest, Trial, 253(4); Houston v. Town of Waverly, 225 Ala. 98, 142 So. 80; Buffalo Rock Bottling Co. v. Stephenson, 22 Ala. App. 605, 118 So. 498; Selman v. Moore, 31 Ala. App. 534, 19 So.2d 548. The refusal of defendants' charge D was error, since it was designed to overcome the misleading effect of plaintiff's given charge 16, and to give the jury a clear statement of the principle of contributory negligence. Birmingham So. R. Co. v. Harrison, supra; Pollak v. Davidson, supra. Although the complaint charged that the injuries were willfully and wantonly inflicted, there was no evidence of either willfulness or wantonness, and the affirmative charge as to Count 2 should have been given at defendants' request. Adler v. Martin, 179 Ala. 97, 59 So. 597; Central of Ga. R. Co. v. Corbitt, 218 Ala. 410, 118 So. 755; Porterfield v. Life Casualty Co., 242 Ala. 102, 5 So.2d 71.
Scruggs Scruggs, Guntersville, for appellee.
Plaintiff's charge 15 was properly given. Birmingham R. L. P. Co. v. Friedman, 16 Ala. App. 221, 77 So. 59. Charge 16 was properly given. Memphis C. R. Co. v. Martin, 131 Ala. 269, 30 So. 827; Birmingham R. L. P. Co. v. Friedman, supra. Charge 17 was properly given. Herring v. Louisville N. R. Co., 203 Ala. 136, 82 So. 166. Charge 18 was properly given. Western R. of Ala. v. Williamson, 114 Ala. 131, 21 So. 827. Refusal to give the affirmative charge for defendant on wanton count is harmless where the verdict does not embrace punitive damages. Alabama City, G. A. R. Co. v. Lee, 200 Ala. 550, 76 So. 908. Moreover, in this case, there were no instructions given to the jury as to punitive damages. Cartwright v. Hughes, 226 Ala. 464, 147 So. 399. A witness may testify to his opinion if a shorthand rendition of fact. 9 Ala.Dig., Evidence, 473.
Plaintiff Martin recovered a judgment for $1200 against Johnson and Huskey for property damage to his Chevrolet automobile and for personal injuries arising out of a collision of his automobile with Johnson's Mack truck and trailer, being driven at the time by his duly authorized agent, Huskey. One McNear was driving the plaintiff's car. From this adverse judgment the defendants have appealed.
The case went to the jury on Count 1 for simple negligence and Count 2 for wantonness. It is argued that error prevailed in the refusal to the defendants of the affirmative charges with hypothesis on the wanton count (Charges A and C). Without considering whether or not the evidence, viewed in its most favorable aspect for the plaintiff, raised the inference of wantonness, this contention may be otherwise disposed of. The verdict of the jury, as observed, was in the amount of $1200. There was substantial evidence to sustain the plaintiff's claim of negligence. The evidence was without conflict that the damages to the plaintiff's automobile alone amounted to the sum awarded, and in addition thereto the plaintiff suffered painful physical injuries for which he might also have been compensated. It is clear, therefore, in view of the injuries unquestionably sustained, the verdict did not embrace any punitive damages. In this posture of the case, the refusal of these charges was without prejudice to the defendants. Alabama City, G. A. R. Co. v. Lee, 200 Ala. 550, 552(5), 76 So. 908.
Defendants seek to rest error on the giving of plaintiff's charge 15, which allows the jury to "find" rather than requiring them to be "reasonably satisfied" in making up their conclusion on the issues postulated in the charge. Under our decisions, reversible error will not be declared for the giving or refusing of charges of this character. Birmingham Belt R. Co. v. Nelson, 216 Ala. 149, 151, 112 So. 422.
The giving of charge 16 requested by the plaintiff is argued as error to reverse because of its alleged misleading tendency in instructing the jury that (1) plaintiff would be barred from recovering only if his negligence caused the injury or (2) if his negligence proximately contributed to his injury. It is true, as argued, that the first alternative makes the charge bad as one on the question of contributory negligence, since negligence to bar recovery must be the proximate cause of injury. However, the bar to recovery stated in the first alternative in pretermitting to hypothesize that the injury must be proximately caused by the plaintiff's negligence was of a higher degree than the law requires, was therefore disadvantageous to the plaintiff and without prejudice to the defendants.
There was no prejudicial error by the giving of plaintiff's charge 17 as regards wantonness for the reason first hereinabove stated that it is manifest the jury laid out of consideration any punitive damages, resulting that the charge was merely abstract, the giving of which was, of course, without prejudicial error to the defendants.
Nor do we think error to reverse resulted in the giving of charge 18 for the plaintiff. It did not, as argued, narrow the issues within the plea of contributory negligence, ignoring the issues raised by the plea of the general issue. Such a charge received approval in the case of Western Ry. of Ala. v. Williamson, 114 Ala. 131, 144, 21 So. 827.
In passing, we should observe that some of the charges adverted to above received criticism in Johnson v. McNear, 52 So.2d 154, a companion case of the instant one, where an occupant of plaintiff's car sued defendants for personal injuries. There, however, the issues were different and, as illustrated above, the giving of such charges in the case at bar cannot be made the basis of error.
Ante, p. 457.
Nor can error to reverse be predicated on the refusal of the defendant's requested written charge D, since the charge was not only adequately covered by the oral charge of the court, but it also pretermitted a consideration of wantonness, to which contributory negligence is no defense.
One final argument will be considered. Plaintiff's witness Bryant, who reached the scene of accident some time after it occurred testified with reference to seeing some marks on the pavement and sought to describe them. In answering the question as to whether there were any skidmarks showing where the car wheels themselves had skidded, he answered, "There were some there where they had been pulled this way." Objection was made and overruled to that part of the answer, "they had been pulled," and this ruling is assigned as error. We perceive no error here. At this juncture, after so ruling, the court interrogated the witness as to whether he referred to the skidmarks and the witness answered, "Yes, sir," clearly showing that the quoted statement above was merely a shorthand rendering of the facts and his description of the appearance of the skidmarks on the highway.
We find no error to reverse.
Affirmed.
LIVINGSTON, C. J., and BROWN and STAKELY, JJ., concur.