Opinion
7 Div. 155.
March 16, 1933.
Appeal from Circuit Court, Etowah County; Woodson J. Martin, Judge.
Goodhue Lusk, of Gadsden, for appellant.
Failure to exercise reasonable care and prudence ordinarily constitutes negligence; yet the conduct of one suddenly placed in a position of peril is not to be judged by the ordinary rule of reasonable care and prudence, and he is not required to exercise all the presence of mind of a prudent and careful man not so circumstanced. Birmingham S. R. Co. v. Vanderford, 217 Ala. 342, 116 So. 334; 20 R. C. L. 29, 135; 27 A.L.R. 1200. Where a complaint contains a count averring simple negligence in general terms, the issues presented include negligence after discovery of peril, and, if there is evidence tending to support such issue, the jury should not be instructed to the effect that, if plaintiff could, by the exercise of reasonable care and prudence, have avoided the injury then he could not recover for any negligent conduct on the part of defendant. Mobile L. R. Co. v. Gadik, 211 Ala. 582, 100 So. 837; Boyette v. Bradley, 211 Ala. 370, 100 So. 647; Lindsey v. Kindt, 221 Ala. 190, 128 So. 139; McBride v. Barclay, 219 Ala. 475, 122 So. 642; Hines v. Champion, 204 Ala. 227, 85 So. 511; Alabama Great Southern R. Co. v. Molette, 207 Ala. 624, 93 So. 644; McCaa v. Thomas, 207 Ala. 211, 92 So. 414; Hart v. Bray, 50 Ala. 446; Smith v. Connecticut Ry. Lighting Co., 80 Conn. 268, 67 A. 888, 17 L.R.A. (N.S.) 707; Faulkner v. Gilchrist, 225 Ala. 391, 143 So. 803.
Culli Culli, of Gadsden, and Luke P. Hunt, of Birmingham, for appellee.
When subsequent negligence is relied on and the evidence shows that negligence of plaintiff, after he became aware of his peril, continued to the last moment and contributed to his injury as a proximate cause, such negligence of the plaintiff precludes recovery by him, although defendant's negligence operates up to the same moment. Birmingham Ry., L. P. Co. v. Aetna A. L. Co., 184 Ala. 601, 64 So. 44. If plaintiff could by the exercise of reasonable care and prudence have avoided the collision, it was his duty to do so. Mobile O. R. Co. v. Williams, 221 Ala. 402, 129 So. 60; White Swan Laundry Co. v. Wehrhan, 202 Ala. 87, 79 So. 479. Where a complaint does not contain a wanton or willful count, and the defense of contributory negligence is pleaded in short by consent, a charge stating the law of contributory negligence in general will not work a reversal in absence of a request for an explanatory charge. Salter v. Carlisle, 206 Ala. 163, 90 So. 283.
Another collision between motor vehicles, on a public highway, in broad daylight, resulting in personal injuries to plaintiff, and properly damage to both vehicles. The collision itself speaks negligence on the part of one and possibly of each of the two drivers.
The plaintiff's car, driven by the plaintiff himself, was proceeding towards Boaz, while the defendant's truck, driven by the defendant's servant or agent, Copeland, was proceeding towards Attalla. The accident occurred just beyond the "over-head bridge" on the Boaz side of the railroad. The plaintiff testified that he was traveling about thirty-five miles an hour, while defendant's testimony tended to show that the speed of plaintiff's car was about forty or forty-five miles an hour. Defendant's testimony tended to show that the speed of its truck was from fifteen to twenty miles in hour, while plaintiff testified that the speed of defendant's truck was about thirty-five miles an hour. The driver of each of the cars could see the other for a distance of (certainly) not less than three hundred feet. It was daylight, around 7 a. m., and the road was free of obstructions and sufficiently wide to permit the two motor vehicles to pass each other with ease and safety.
There were verdict and judgment for defendant, and from that judgment this appeal is prosecuted. Only two questions are here presented for review, one arising upon the giving of charge numbered 1 at request of defendant, and the other is predicated upon the court's refusal to grant plaintiff's motion for new trial.
The evidence, under the pleadings, presented a jury case, both as to negligence on the part of defendant's servant in the operation of the truck and contributory negligence on the part of plaintiff.
Charge 1 is in the following language: "The court charges the jury that if the plaintiff, Carter, on the occasion in question could have by the exercise of reasonable care and prudence avoided the collision between his automobile and the truck of defendant and failed to do so, then the plaintiff would not be entitled to recover any damages in this suit, notwithstanding the fact that you might also be reasonably satisfied from the evidence that the driver of defendant's truck was guilty of negligence on said occasion."
This charge, if not otherwise faulty, assumed, as a matter of law, that the negligence hypothesized, on the part of plaintiff, proximately contributed to his injury. In giving this charge, the court committed reversible error. The true test as to whether the plaintiff's contributory negligence will defeat recovery is whether his negligence contributed proximately to his injury. Stowers v. Dwight Mfg. Co., 202 Ala. 252, 80 So. 90; Herring v. Louisville Nashville R. Co., 203 Ala. 136, 82 So. 166; McCaa v. Thomas, 207 Ala. 211, 92 So. 414; Montgomery L. T. Co. v. Harris, 197 Ala. 236, 72 So. 545; Talley v. Whitlock, 199 Ala. 28, 73 So. 976; Central of Georgia R. Co. v. Hyatt, 151 Ala. 355, 43 So. 867; Hines v. Champion, 204 Ala. 227, 85 So. 511; Thompson v. Duncan, 76 Ala. 334 -338.
In this view of the case, it becomes unnecessary to review the action of the trial court in overruling plaintiff's motion for a new trial.
For the error in giving, at the request of defendant, charge 1, above set out, the judgment of the circuit court must be, and is, reversed.
Reversed and remanded.
ANDERSON, C. J., and THOMAS and BROWN, JJ., concur.