Opinion
6 Div. 645.
May 9, 1935. Rehearing Denied June 6, 1935.
Appeal from Circuit Court, Jefferson County; C. B. Smith, Judge.
Stokely, Scrivner, Dominick Smith, of Birmingham, for appellant.
Where there are two or more causes of an injury, the law will consider only the proximate cause and not the remote cause; and, where one cause merely created the condition and after the condition had been created an intervening agency produced the injury, the first cause or condition created will be taken as too remote. Garrett v. Louisville N. R. Co., 196 Ala. 52, 71 So. 685; City Ice Delivery Co. v. Lecari, 210 Ala. 629, 98 So. 901; Burnett v. Alabama Power Co., 199 Ala. 337, 74 So. 459; Birmingham News Co. v. Andrews, 204 Ala. 649, 87 So. 168; Dwight Mfg. Co. v. Vaughn, 203 Ala. 462, 83 So. 327; Vaughn v. Dwight Mfg. Co., 206 Ala. 552, 91 So. 77; Morgan Hill Paving Co. v. Fonville, 218 Ala. 566, 119 So. 610; Birmingham Ry., Light Power Co. v. Ely, 183 Ala. 396, 62 So. 816; Dennier v. Johnson, 214 Iowa, 770, 240 N.W. 745; 22 R. C. L. 132; Shafer v. Myers, 215 Ala. 678, 112 So. 230; Cole v. German S. L. Soc. (C.C.A.) 124 F. 113, 63 L.R.A. 416; Western Ry. v. Mutch, 97 Ala. 194, 11 So. 894, 21 L.R.A. 316, 38 Am. St. Rep. 179. The complaint does not sufficiently allege causal connection between the injuries and damages sustained and the violation of the ordinance. It was subject to demurrer. Wilson v. Louisville N. R. Co., 146 Ala. 285, 40 So. 941, 8 L.R.A. (N.S.) 987; Birmingham Ry. L. P. Co. v. Ely, supra; Williams v. Alabama Fuel Iron Co., 212 Ala. 159, 102 So. 136; Mobile L. R. Co. v. McDonnell, 207 Ala. 161, 92 So. 185; Clinton Min. Co. v. Loveless, 204 Ala. 77, 85 So. 289; Ritch v. Kilby Frog S. Co., 164 Ala. 131, 51 So. 377; Thomas v. Sloss-Sheffield Steel Iron Co., 144 Ala. 188, 39 So. 715; Lusk v. Pugh, 71 Okl. 182, 159 P. 856, 176 P. 80; Pittsburg R. Co. v. Hasty, 106 Okl. 65, 233 P. 221; City Ice Del. Co. v. Lecari, supra. The evidence conclusively shows that the contributory negligence of the plaintiff, acting through her agent, the driver, was the proximate cause of her alleged injuries. No actionable negligence was shown, and defendant was due the affirmative charge. Southern R. Co. v. Miller, 226 Ala. 366, 147 So. 149; Alabama Baptist Hospital v. Carter, 226 Ala. 109, 145 So. 443; Southern R. Co. v. Peters, 194 Ala. 94, 69 So. 611; Hertz v. Advertiser Co., 201 Ala. 416, 78 So. 794, L.R.A. 1918F, 137; Jones v. Union Co., 171 Ala. 225, 55 So. 153; Godfrey v. Vinson, 215 Ala. 166, 110 So. 13; Garrett v. Louisville N. R. Co., supra.
Taylor Higgins, of Birmingham, for appellee.
The violation of a statute or ordinance is negligence per se, and a person proximately injured thereby may recover from the violator of the law. Watts v. Montgomery Tr. Co., 175 Ala. 102, 57 So. 471; Newell Contr. Co. v. Berry, 223 Ala. 111, 134 So. 868. Count A states a cause of action; it was not subject to the demurrer. Newell Contr. Co. v. Berry, supra; Id., 223 Ala. 109, 134 So. 870. The negligence of defendant need not be the sole or immediate cause of the injury; if its wrongful act is one of two or more efficient causes, other than plaintiff's fault, which cooperate directly to produce the injury, the wrongful act of the defendant is the proximate cause of the injury. Violation of the ordinance was the proximate cause in this case. Chambers v. Cox, 222 Ala. 1, 130 So. 416; Western Ry. v. Sistrunk, 85 Ala. 352, 5 So. 79; Welch v. Evans Bros., 189 Ala. 548, 66 So. 517; Morgan Hill Paving Co. v. Fonville, 218 Ala. 566, 119 So. 610; Elliott v. Seattle C. M. Co., 141 Wn. 157, 251 P. 117; Flynn v. Bledsoe Co., 92 Cal.App. 145, 267 P. 887; Meizner v. Coblitz, 39 Ohio App. 20, 176 N.E. 692; Townsend v. Jaloff, 124 Or. 644, 264 P. 349. Plaintiff was competent to testify as a witness in her own behalf that she suffered pain since the accident, and that she had been unable to do her household work. St. Louis S. F. R. Co. v. Savage, 163 Ala. 55, 50 So. 113; Alabama S. W. Co. v. Tallant, 165 Ala. 521, 51 So. 835; Southern R. Co. v. Fisher, 199 Ala. 377, 74 So. 580; Jefferson St. L. I. Co. v. Simpson, 228 Ala. 146, 153 So. 198.
This case was submitted to the jury on amended count A alone, and there was a verdict and judgment for the plaintiff.
Count A charges that the defendant's agent or servant, acting within the line and scope of his authority, parked a motor vehicle on a portion or part of a highway in the city of Birmingham in violation of a law or ordinance of said city prohibiting parking of such vehicles at said place. It also charges that the car in which plaintiff was riding ran into or collided therewith, whereby the plaintiff was injured, and that said injuries were proximately caused by the unlawful parking of said defendant's motor vehicle at said point. The count was not subject to the defendant's demurrer. Newell Contracting Co. v. Berry, 223 Ala. 109, 134 So. 870; Id., 223 Ala. 111, 134 So. 868. If the plaintiff's driver negligently permitted the plaintiff's car to collide with the defendant's unlawfully parked truck, this would be defensive matter.
It was a question for the jury as to whether or not the improper parking of the defendant's truck was the proximate cause of the plaintiff's injury or whether or not her driver was guilty of proximate contributory negligence in permitting her car to collide with said truck, taking into consideration the frozen and slippery condition of the highway and all surrounding circumstances. The numerous authorities cited and quoted in brief of appellant's counsel do not necessarily apply to the facts of this case.
The evidence of the plaintiff as to the nature and extent of her injuries, that she suffered pain thereafter as she had not suffered before, was not objectionable. St. Louis S. F. R. R. Co. v. Savage, 163 Ala. 55, 50 So. 113. So much of her evidence as related to neuritis was withdrawn by plaintiff's counsel and excluded by the court before the cause was finally submitted to the jury.
The trial court did not err in refusing charge 4, embodied in the fifteenth assignment of error. It could possibly have been given without error, but the refusal of same was free from reversible error; as count 3, the wanton count, was considered as withdrawn, the record shows that the court submitted the case to the jury on amended count A alone.
There was no error in permitting the plaintiff to testify that prior to the accident the driver handled the car all right. It tended to negative contributory negligence on his part in colliding with defendant's truck. The evidence was competent and relevant, and there was no objection that witness was not an expert, even if she had to be, which we need not decide.
There was no error in sustaining the objection embodied in assignment of error 22. It called for the opinion as to results, which was a question for the jury to decide.
The trial court did not err in overruling the defendant's motion for a new trial.
The judgment of the circuit court is affirmed.
Affirmed.
THOMAS, BROWN, and KNIGHT, JJ., concur.