Summary
ruling on effect of omitted evidence upon issues to which the omitted evidence relates, the evidence being diagrams, holding that the case was not reviewable
Summary of this case from Wilson v. SmithOpinion
3 Div. 768.
June 24, 1926. Rehearing Denied November 4, 1926.
Appeal from Circuit Court, Montgomery County; Walter B. Jones, Judge.
Rushton, Crenshaw Rushton, of Montgomery, for appellant.
The affirmative charge as to the wanton count should have been given for defendant. Johnston v. Warrant Warehouse Co., 211 Ala. 165, 99 So. 920; Feore v. Trammel, 212 Ala. 325, 102 So. 529; Copeland v. Central of Georgia R. Co., 213 Ala. 620, 105 So. 809. The damages were excessive. Central of Georgia R. Co. v. Robertson, 206 Ala. 578, 91 So. 470. The breach of a city ordinance on the part of plaintiff is negligence as matter of law, and, if it contributes to the injury in the remotest degree, it is a complete defense to a count charging negligence. Dowdell v. Beasley, 17 Ala. App. 100, 82 So. 40; Id., 205 Ala. 130, 87 So. 18.
Hill, Hill, Whiting, Thomas Rives, of Montgomery, for appellee.
The bill of exceptions was not presented to the trial judge within 90 days after judgment, and, appeal being taken from the original judgment, the bill of exceptions cannot be looked to in reviewing the original judgment or judgment on motion for new trial. McMillon v. Skelton, 208 Ala. 693, 95 So. 148. In the absence from the bill of exceptions of the diagrams used in evidence, the court cannot review the giving or refusal of the affirmative charge as to count 2. Bates v. Louisville N. R. Co., 21 Ala. App. 176, 106 So. 394; Alabama Terminal R. Co. v. Benns, 189 Ala. 599, 66 So. 589. In reviewing the refusal to give the affirmative charge, the scintilla rule applies. McMillan v. Aiken, 205 Ala. 40, 88 So. 135. There was ample evidence to support the wanton count. Louisville N. R. Co. v. Williams, 183 Ala. 138, 62 So. 679. Ann. Cas. 1915D, 483. When there is evidence of subsequent negligence, a charge on contributory negligence, to be good, must not ignore the subsequent negligence feature. Mobile Light R. Co. v. Logan, 213 Ala. 672, 106 So. 147; Mobile Light R. Co. v. Gadik, 211 Ala. 582, 100 So. 837.
This was an action in damages for personal injuries arising out of a collision between an automobile owned and driven by defendant, and a bicycle ridden by plaintiff, a police officer of the city of Montgomery. The collison occurred at the intersection of Montgomery and Wilkerson streets in this city. The case was tried on count 1 for simple negligence, count 2 for wanton injury, plea of the general issue, and plea of contributory negligence to first count.
Under present statute a bill of exceptions will not be stricken or disregarded by the court ex mero motu because not "presented" or "signed" within the time required by law, but only on motion to strike duly made and submitted with the cause. Code, § 6434.
Appellant presents the ruling of the court in submitting to the jury the issue under the wanton count — refusal of the affirmative charge thereon. Wantonness has been so often and so clearly defined that we merely cite a few of the many cases. B. R. R. Co. v. Bowers, 110 Ala. 328, 20 So. 345; L. N. R. R. v. Brown, 121 Ala. 221, 25 So. 609; M. C. R. R. Co. v. Martin, 131 Ala. 269, 30 So. 827; A. G. S. R. Co. v. Burgess, 114 Ala. 587, 22 So. 169; Southern Ry. v. Gantt, 210 Ala. 383, 98 So. 192; Mobile Light Co. v. Gadik, 211 Ala. 582, 100 So. 837; Johnson v. Warrant Warehouse Co., 211 Ala. 165, 99 So. 920; Copeland v. Cen. of Ga. Ry. Co., 213 Ala. 620, 105 So. 810.
In dealing with the affirmative charge refused to defendant, the court must look to the strongest tendencies of the evidence for plaintiff. In this connection we must note that it appears one or more diagrams showing the locus in quo were used in the examination of witnesses. The diagram is not before us, and much testimony is unintelligible without its aid with some indicia of locations, distances, lines of motion, and the like, which were pointed out to the jury but are not available to us. To illustrate, Mrs. Godfrey, wife of defendant, says:
"I can show you on the diagram where the collision took place. We came up; we were coming right up here; and we turned, about right like this way. I saw this man coming right along here, and so did Mr. Godfrey."
Evidence of plaintiff's witnesses is in like condition. In this state of the case we cannot review rulings on the effect of the evidence upon issues to which, the omitted evidence relates. Bates v. L. N. R. R. Co. 21 Ala. App. 176, 106 So. 394; Ala. Terminal R. Co. v. Benns, 189 Ala. 590, 66 So. 589.
There is evidence that defendant was running his car at a speed of about 25 miles per hour at 11 o'clock at night without lights (Code, § 6264), on the left-hand side of the street (Code, § 6266), "cutting the corner," turning into a street to the left without keeping to the right of the crossing (Code, § 6266). Any of these violations of law is negligence. Neither of them, standing alone, would be evidence of wantonness under all conditions, but they tend to show that disregard of the legal safeguards to human life which is rushing scores, even hundreds, to violent and untimely death. Under special conditions of danger, known to defendant, either may tend to support an inference of wantonness. Concurrent disregard of several legal duties has a cumulative effect. There is evidence that at the moment plaintiff and another bicyclist following were coming down Montgomery street in the proper position and entering the intersection of Wilkerson street; that another car was coming in the same direction a short distance behind them; that the crossing was lighted by an electric street lamp. Defendant admits cutting across Montgomery street before reaching the crossing in order to pass in front of the approaching automobile. Plaintiff's evidence tends to show defendant's line of motion indicated a purpose to go on up Montgomery street, but he suddenly whipped into Wilkerson street; hence the collision. Plaintiff further contends he was at the time throwing a flashlight on defendant's car to warn him his lights were not on.
Wantonness may arise from knowledge that persons, though not seen, are likely to be in a position of danger, and with conscious disregard of known conditions of danger and in violation of law brings on the disaster. Wantonness may, of course, arise after discovery of actual peril by conscious failure to use preventive means at hand. The evidence of defendant was sharply at variance with that of plaintiff upon important issues of fact.
The above synopsis is sufficient to indicate that, in view of details pointed out to the jury in the presence of the trial court and not before us, we cannot say there was error in refusal of the affirmative charge on the wanton count.
The count for simple negligence included the issue of negligence after discovery of peril. The evidence made a proper issue for the jury on such subsequent negligence. Where such negligence appears, negligence of plaintiff, not subsequent to his discovery of his own peril, is not in law the contributing cause of his injury. There was no error in refusing to defendant the affirmative charge on the simple negligence count.
Several charges refused to defendant predicate a finding as to count I upon contributory negligence in the violation of certain city ordinances by plaintiff, viz., running the bicycle at a rate of speed in excess of six miles per hour, running at night without a lighted lamp attached, coasting on the street, and failure to sound a gong at the crossing. All those relate to initial contributory negligence. None rely upon negligence of plaintiff after discovery of his own peril, and were properly refused for that reason. Several refused charges direct a verdict for defendant as to the simple negligence count, if plaintiff's negligence "contributed proximately, even in the remotest degree, to his injuries." These charges are modeled after charge No. 8, approved in Dowdell v. Beasley, 17 Ala. App. 100, 82 So. 40, a decision by the Court of Appeals, sustained by this court on certiorari. Ex parte Beasley, 203 Ala. 696, 82 So. 893.
Appellee forcibly criticizes "remotest degree" used in connection with proximate cause of injury. "Proximate" means, derivatively, "next" or "nearest." In the law of negligence it means next in relation of cause and effect — the immediate efficient cause in direct chain of causation. "Proximate" and "remote" are the commonly used legal terms to distinguish between actionable and nonactionable negligence as the cause of injury. Garrett v. L. N. R. Co., 196 Ala. 52, 71 So. 685. In this state the law of comparative negligence does not obtain. The jury is to institute no comparison as to whether plaintiff is equally negligent with defendant, or whether his negligence equally contributes to the injury. If plaintiff is negligent, and his negligence contributes in some measure as a proximate cause of the injury, this is sufficient. The expression, "remotest degree," is intended to express this doctrine. Contribute in the "least degree" is the more apt expression. The trial court so conceived, as witness the following from his oral charge:
"Of course, if you believe from the evidence in this case that the plaintiff in the case was himself on that night guilty of contributory negligence in the least degree, and that such negligence proximately contributed to his own injury, of course, he could not have a verdict on the count in simple negligence."
This instruction, in connection with other portions of the oral charge and given charges, fully covered the law as presented in refused charges. We do not find it necessary to approve or disapprove Dowdell v. Beasley, supra, on the point raised. See Salter v. Carlisle, 206 Ala. 163, 90 So. 283.
The giving of charges (a) and (b) for plaintiff was without error.
In view of the issues properly submitted to the jury, the nature and permanency of the injury suffered by plaintiff, his prolonged suffering and expense, the verdict will not be disturbed as excessive. The report of the case sets forth a synopsis of the testimony of Dr. Montgomery touching the injuries.
Affirmed.
ANDERSON, C. J., and SOMERVILLE and THOMAS, JJ., concur.