Opinion
6 Div. 158.
April 7, 1921.
Appeal from Circuit Court, Jefferson County; Horace C. Wilkinson, Judge.
W. A. Denson, of Birmingham, for appellant.
Court erred in directing a verdict as to counts 2 and 3. 194 Ala. 176, 69 So. 601; 144 Ala. 350, 39 So. 74; 140 Ala. 215, 37 So. 338; 144 Ala. 331, 39 So. 305; 172 Ala. 593, 55 So. 252, 35 L.R.A. (N.S.) 420; 124 Ala. 375, 26 So. 880; 171 Ala. 316, 55 So. 107. The plaintiff had a right to inquire if any of the jurors owned automobiles. 182 Ala. 577, 62 So. 199; 175 Ala. 354, 57 So. 876, Ann. Cas. 1914C, 1037; 168 Ala. 560, 53 So. 213.
Nesbit Sadler, of Birmingham, for appellee.
Subsequent negligence was comprehended in the first count. 197 Ala. 71, 72 So. 366; 158 Ala. 391, 48 So. 99; 194 Ala. 360, 70 So. 125. Where recovery may be had under one count, which is submitted to the jury, the withdrawing of another count presenting the same issues is not error. 91 Ala. 487, 8 So. 552; 179 Ala. 213, 60 So. 175; 194 Ala. 360, 70 So. 125; 175 Ala. 391, 57 So. 823. Although not entitled to the general charge, if the evidence overwhelmingly sustains the verdict rendered, the verdict will be upheld. 116 Ala. 142, 23 So. 53; 181 Ala. 565, 61 So. 914; 175 Ala. 319, 57 So. 718, 40 L.R.A. (N.S.) 998; 201 Ala. 565, 78 So. 961.
The first assignment of error presents for review the action of the court in giving the affirmative charge at the defendant's request as to count 2. This count specifically relies for recovery upon the negligence of defendant after he became aware of plaintiff's peril, and negligently failing to use all means at his command to avoid the collision, when by the use thereof the accident could have been averted. The giving of this charge was therefore an instruction to the jury, in effect, that the plaintiff could not recover upon the theory of subsequent negligence.
We are persuaded this was error. From the defendant's evidence the jury could infer that he became aware of the plaintiff's peril just as he turned his car from the driveway into Juniper street, for he says he then saw that the motorcycle was going to skid, and immediately slowed his car and "eased around" the corner, and that at this time the plaintiff was about 75 feet distant. The plaintiff insisted that he was driving his motorcycle on the right-hand side of the street, never a greater distance than 9 feet from the curb, and that defendant drove his automobile across the street onto the side where plaintiff was, inflicting the injuries complained of. The evidence of the defendant was to the effect that at the rate of speed he was going he could have stopped his car within 10 or 11 feet. It is manifest, therefore, that if the plaintiff's evidence is to be believed, the jury could infer from all the testimony in the case that defendant did not use all the means at his command to avoid injuring the plaintiff after discovery of his peril; for, accepting the plaintiff's version of the accident, the defendant, instead of stopping within 11 feet, went across the street, and within 9 feet of the opposite curb, before striking plaintiff. The question of subsequent negligence therefore should have been submitted to the jury, and the court committed error in instructing them to the contrary.
Counsel for appellee insists the evidence supporting the defendant's theory was so overwhelming and that of the plaintiff himself was so unreasonable, that for these reasons it appears the plaintiff could not recover, and that consequently this appeal should not result in a reversal — citing De Kalb County v. McClain, 201 Ala. 565, 78 So. 961. That case dealt with a question of law, and is not applicable to a situation as here presented, for, however strong may be the evidence for the defendant, there was nevertheless a conflict, and presented a question of fact for the jury. The argument is without merit.
Charge 10, given for the defendant, which will appear in the statement of the case, likewise ignores any evidence tending to establish subsequent negligence, and should not have been given.
We think it require no discussion to disclose the court committed no error in sustaining the objection to the question sought to be asked the jurors upon their qualification.
We are not convinced that a case had been made out under the wanton count, and therefore conclude no error was committed in giving the affirmative charge as to count 3.
For the errors indicated, the judgment is reversed, and the cause remanded.
Reversed and remanded.
ANDERSON, C. J., and SAYRE and MILLER, JJ., concur.