Birmingham Electric Co. v. Friedman

SAYRE, J. In a collision between defendant’s (appellant’s) electric street car and plaintiff’s motorcycle the last-named vehicle suffered injury for which a jury awarded damages to plaintiff. The evidence for defendant, very clearly as it appears to us, tended to show contributory negligence on the part of the driver of the motorcycle, for which plaintiff was liable. The charge given for plaintiff, and made the subject of the first assignment of error, ignored the plea of contributory negligence and the evidence in support of it. The charge should have been refused. Frierson v. Frazier, 142 Ala. 232, 37 So. 825; Alabama Steel Co. v. Thompson, 166 Ala. 460, 52 So. 75; Alabama Great Southern v. Smith, 178 Ala. 613, 59 So. 464. Numerous other cases to the same effect might be cited. We have no brief for appellee and are not informed as to what consideration may have induced the trial court to give this charge. Out of abundance of caution only we note the fact that the driver of the motorcycle was the agent or servant of plaintiff, not a bailee, as in Bradley v. Ashworth, 211 Ala. 395, 100 So. 663. Defendant also, among other things, complains that it was entitled to have its requested general affirmative charge against the second count which alleged wantonness. On the case shown in the evidence now before the court, it appears that defendant should • have had this charge. We cannot, of course, foresee what the evidence may show on another trial and do not intend to predict the result, but if it remains as it now appears, defendant will be entitled to this charge. On the case as it now stands it was necessary, under the practice prevailing in this jurisdiction, to submit plaintiff’s claim of damages, in the first place at least, to the jury, for the evidence, it may be conceded, was in conflict; but, whatever may be said as to' the matter of defendant’s negligence, the great weight of the evidence went to prove the contributory negligence of plaintiff’s servant or employee in charge of the motorcycle. Reversed and remanded. ANDERSON, C. J., and GARDNER and BOULDIN, JJ., concur.