Burr v. Munson

McOLELLAN, J. The plaintiff, appellee, was awarded judgment against the appellant in the sum of $250 for the death of Louise Parker, caused by contact with appellant’s automobile while moving along a public street in the city of Birmingham. The only error assigned brings into question the action of the trial court in refusing general affirmative instruction in appellant’s favor. The instruction requested for defendant should'have been given. There was no evidence or inference from evidence tending to sustain,the averment that intestate’s death was proximately caused by. defendant’s negligence. The undisputed testimony — given by W. S. Forman, the only eyewitness t'o the fact and circumstances of intestate’s injury, and by defendant — disclosed that Louise Parker moved from the curb of the parkway (in the center of Highland avenue)’ into and against the side of the front fender of the automobile driven by defendant along the west driveway of that avenue; and that defendant did not see her until after the injury. There was no evidence that defendant either drove the car against her or that he negligently permitted the car to strike her. On the evidence in this record, the conclusion is inescapable that the sole cause of injury was that the woman, herself, moved into contact with the car. Neither location of wounds on the woman’s head nor the posture . of her body immediately after the injury instituted conflict with the positive testimony t'o which reference has been made. The ambulance driver testified that defendant, in response to his inquiry as to .the cause of the injury, said: “That darn fellow trying, to drive and didn’t know how.” The witness testified he did not know what fellow defendant was talking about. The evidence does not otherwise, in any degree, enlighten. The defendant denied making any such statement. The testimony was -undisputed that defendant, not Forman, was driving the ear. It was not an admission referable to defendant, himself. The import of the words was that another, unskilled in driving, had caused the injury. In neither design nor effect was the expression susceptible of an interpretation that defendant’s own negligence caused the injury. If the expression’s purport was taken as reflecting upon the otherwise undisputed testimony that defendant,-not Forman, was driving the car at the time — thereby instituting conflict in that particular and (we assume) attributing the injury to negligence of the unskilled driver— still this material phase of, the evidence remained undisputed, vis. that the woman moved into contact with the side of the car; that the car did not run into the woman. The judgment is reversed, and the cause is remanded. Reversed and remanded. ANDERSON, O. J., and SAYRE, .SOMERVILLE, GARDNER, and MILLER, JJ., concur. THOMAS, J., not sitting.