Opinion
6 Div. 562.
May 29, 1930. Rehearing Denied June 26, 1930.
Appeal from Circuit Court, Jefferson County; Joe C. Hail, Judge.
J. L. Drennen, of Birmingham, for appellant.
Where a given charge is susceptible of two constructions, appellate courts will place that construction upon the charge which will sustain, rather than condemn, it. Alabama Consol. C. I. Co. v. Heald, 171 Ala. 263, 55 So. 181; Birmingham S. R. Co. v. Harrison, 203 Ala. 284, 82 So. 534. Where the verdict is right on the merits, the judgment will not be reversed on account of errors in instructions. 2 Ala. So. Dig. § 1068; Thames v. L. N., 208 Ala. 255, 94 So. 487; Bugg v. Sanders, 219 Ala. 129, 121 So. 410.
Mullins, Jenkins Pointer, of Birmingham, for appellee.
It is reversible error for the trial court to give at the request of defendant a charge to the effect that, if plaintiff was guilty in the slightest degree of any negligence contributing to her injury, she cannot recover. McCaa v. Thomas, 207 Ala. 211, 92 So. 414; Newsome v. Louisville N. R. Co., 20 Ala. App. 349, 102 So. 61; Seaboard A.L.R. Co. v. Laney, 199 Ala. 654, 75 So. 15; Tennessee C. I. R. Co. v. Bridges, 144 Ala. 299, 39 So. 902, 113 Am. St. Rep. 35. It was a question for the jury as to whether or not defendant had discharged its duty with reference to maintaining the floor in a reasonably safe condition for the use of customers. Reed v. Hamill D. G. Co., 215 Ala. 494, 111 So. 237; Hertz v. Advertiser Co., 201 Ala. 416, 78 So. 794, L.R.A. 1918F, 137; Judson v. American Ry. Ex. Co., 242 Mass. 269, 136 N.E. 103; Southern Ry. v. Bates, 194 Ala. 78, 69 So. 131, L.R.A. 1916A, 510; 20 R.C.L. 66; 45 C.J. 815.
Appellee went into appellant's store to buy groceries, fell upon the floor, and thereby suffered a broken arm. Appellee attributed her injury to the fact (according to her theory of the case) that the floor was wet or oily and thereby caused her to slip and fall. Appellant, denying negligence and further pleading contributory negligence in short by consent, in support of its last-mentioned plea offered evidence tending to show that appellee's injury was chargeable proximately, in material part at least, to the fact that she had on at the time high-heeled shoes, one of which turned, causing her to fall. Very clearly the issues were for jury decision. They were decided by the jury in defendant's favor; but the verdict was set aside, and from this last-mentioned ruling the defendant has appealed.
The single question presented by the appeal grows out of the following charge:
"If plaintiff was, herself, guilty in the slightest degree of any negligence contributing to her fall and injury, she cannot recover in this case."
The court gave this charge on defendant's request, but afterwards, on plaintiff's motion, based upon that action, set aside the verdict.
There is no question but that the negligence on the part of plaintiff which would exonerate defendant of the consequence of negligence on its part must have contributed proximately to plaintiff's injury. Ruffin Coal Transfer Co. v. Rich, 214 Ala. 633, 108 So. 596. The court, as we infer, on considering the motion, held the charge bad and its giving reversible error, for the reason that it omitted the word "proximate" in its hypothetical description of the negligence which would bar plaintiff's recovery. The court here is unable to say what influence upon the verdict rendered the charge in question may have had or that there might not have been a reasonable expectation that the result would have been different had the word "proximate" been used in its appropriate place. The court is therefore unable to say that the trial court committed reversible error in setting aside the verdict.
Affirmed.
ANDERSON, C. J., and THOMAS and BROWN, JJ., concur.