Opinion
6 Div. 566.
February 9, 1922.
Appeal from Circuit Court, Jefferson County; Romaine Boyd, Judge.
London, Yancey Brower, of Birmingham, for appellant.
The fact that a fire wagon has a right of way does not excuse or exempt its driver from the duty to exercise due care in driving upon or across a popular street crossing. 126 Ala. 135, 28 So. 87; 196 Ala. 113, 72 So. 16. The defendant was entitled to the general affirmative charge. The court erred in refusing the group of charges beginning with No. 2 and ending with No. 53. 128 Ala. 255, 29 So. 646; 97 Ala. 196, 11 So. 894, 21 L.R.A. 316, 38 Am. St. Rep. 179. The court erred in refusing the group of charges beginning with No. 16 and ending with No. 45. 164 Ala. 82, 51 So. 365, 137 Am. St. Rep. 25; 17 Ala. App. 25, 81 So. 361; 1 C. J. § 5, note 37; (Tex.Civ.App.) 219 S.W. 241; 135 Md. 208, 108 A. 570; 110 Va. 316, 66 S.E. 86. The court should have charged that the pension received should be taken into consideration in determining the plaintiff's damages. Acts 1915, p. 898; 92 Ala. 209, 9 So. 363. Count 1 of the complaint was defective. 80 South, 798.
Black, Altman Harris, of Birmingham, for appellee.
Errors are not so assigned as to require separate consideration by the court, and if any of the assignments are not justified the case will not be reversed. 3 Ala. App. 456, 57 So. 146; 188 Ala. 218, 66 So. 434; 16 Ala. App. 130, 75 So. 722; 173 Ala. 675, 55 So. 1001. The complaint was in all matters sufficient. 125 Ala. 199, 27 So. 1006; 162 Ala. 609, 50 So. 292; 175 Ala. 49, 56 So. 731. It was competent for the witness to state that the bell could be heard several blocks under any sort of conditions. 169 Ala. 213, 53 South, 315, 32 L.R.A. (N.S.) 889; 138 Ala. 614, 35 So. 701 136 Ala. 126, 34 So. 349; 100 Ala. 110, 14 So. 862.
The court is of the opinion count 1 as amended was not subject to the demurrer interposed. Its averments disclose that the plaintiff as a fireman for the city of Birmingham was at his post of duty on the fire truck, which was responding to a fire alarm, and was traveling upon the public highway of the city, where, under the ordinances of the city of Birmingham, it was given the right of way. Plaintiff, therefore, was in the discharge of his duties traveling on the public highway, and defendant owed him the duty not to negligently injure him.
Where the facts stated are sufficient out of which to raise a duty, a very general averment of negligence suffices. B. R., L. P. Co. v. Bush, 175 Ala. 49, 56 So. 731; Southern Ry. Co. v. Arnold, 162 Ala. 570, 50 So. 293.
Nor are we prepared to say that a motion for new trial should have been granted on the ground of the verdict being contrary to the evidence, or for excessiveness of amount. The evidence has by the court been carefully considered in consultation, and needs no discussion here; and upon these questions we have deemed it sufficient merely to state our conclusions.
We do not think the court committed reversible error in permitting the witness to testify that the bell upon the fire engine could be heard for several blocks under almost any conditions. The witness was entirely familiar with the bell, and had many years' experience in the department; and the foregoing answer was but a shorthand rendition of facts. Adler v. Pruitt, 169 Ala. 213, 53 So. 315, 32 L.R.A. (N.S.) 889; B. R., L. P. Co. v. Mullen, 138 Ala. 614, 35 So. 701.
A large number of the charges were refused to defendant that are not argued separately, but in groups, with the proposition of law stated and citation of authority; but in many instances neither the proposition of law nor the citation bear directly upon some of the particular charges in question. This method of treatment of these assignments of error is somewhat confusing to the court, and it may be seriously questioned that the rule of practice in this regard has been met. However, we pass this without decision.
A number of charges embraced within the first collection of assignments of error seem to rest upon the assumption that the negligence of the driver of the truck was imputable to the plaintiff in this cause, who was not the driver, but whose duties stationed him at the rear of the truck. This alone would justify their refusal. B. R., L. P. Co. v. Baker, 132 Ala. 507, 31 So. 618.
The proposition of law stated under still another group of charges is to the effect that the plaintiff could not recover unless he received his injuries as a proximate consequence of the negligence of defendant, or unless such negligence proximately contributed to cause the injuries complained of. This principle was stressed by the court in the oral charge to the jury, and was likewise embraced in charges given at the defendant's request. The refusal of the charges under this heading therefore in no manner conflicts with the principle therein stated.
Some of the refused charges were to the effect that the plaintiff could not recover if he received his injuries by reason of a "mere accident." In support of this character of charge counsel cite Williams v. Anniston Elec. Co., 164 Ala. 84, 51 So. 385, 1 Corpus Juris, 393, and Leland v. Empire Co., 135 Md. 208, 108 A. 570, among other authorities. In the Williams Case, supra, the trial court gave a charge similar to that here in question, and it was held that the giving of that charge was not error. See, also, Choate v. Southern Ry. Co., 119 Ala. 611, 24 So. 373. We have no authority in this state holding that a refusal of this character of charge would constitute reversible error. On the contrary, in Cahaba South. Min. Co. v. Pratt, 146 Ala. 245, 40 So. 943, a charge to the effect that if the death of plaintiff's intestate was occasioned by an accident the verdict should be for the defendant was held misleading, and properly refused. See, also, Pace v. L. N. R. R. Co., 166 Ala. 519, 52 So. 52; Grant v. Moseley, 29 Ala. 302. The discussion of a similar charge in the Leland Case, supra, sustains this view; the court holding that, the instruction there considered was "liable to mislead the jury by merely stating that proposition of law, without informing them what the law regards as an unavoidable accident." We think this criticism entirely correct and sustained by a consideration of the numerous varying definitions of the words "accident," "mere accident," and "pure accident," found in the cases cited to the notes of 1 Corpus Juris, 393. Upon the question of this character of charges, however, the foregoing represents the views of the writer, with whom Justices SAYRE and SOMERVILLE concur. The majority of the court consisting of Chief Justice ANDERSON and Justices McCLELLAN, THOMAS, and MILLER, are of the opinion these charges were correct, were not misleading and should have been given, but that reversible error is not shown in their refusal for the reason that the substance of such charges was contained in the oral charge of the court as well as embraced within the charges given at defendant's request.
Many of the refused charges were argumentative, and were subject to condemnation upon the ground that they laid stress upon certain facts, ignoring other elements of liability. Dillworth v. Holmes, 15 Ala. App. 340, 73 So. 288.
We are further of the opinion that defendant received all to which it was entitled, growing out of proof of reception of pension by plaintiff in charges 54 and A, given at defendant's request, and that there was no reversible error in the refusal of charge 28.
The affirmative charge was likewise properly refused. There was evidence from which the jury could infer that the driver of defendant's bus could have heard or seen the approaching fire truck at the intersection of these streets in time to have cleared the way and avoided the accident, and the issues of fact were properly submitted for the jury's determination. There is no merit in the suggestion that the averments of the complaint as to the time and place of the collision should be construed as having application to the very moment of the impact of the vehicles, excluding any negligence on the part of the driver of the bus in entering or crossing the intersection of these streets. The words are to be given their ordinary accepted meaning.
Finding no reversible error in the record, the judgment appealed from will be affirmed.
Affirmed.
All the Justices concur.