Dunklin v. Hanna

BROWN, Justice. This is an action on the ease by the appellant against the appellee for damages for personal injuries which plaintiff alleges he received in consequence of the negligence of the defendant in the operation of an automobile in which both of the parties were traveling from Selma to Marion, Ala. The complaint consists of two counts, in substance and -legal effect the same, alleging that plaintiff was a passenger of the defendant who owned and operated the automobile. The defendant pleaded, in short by consent, the general issue and contributory negligence. Under the .evidence, both the question of negligence on the part of the defendant and contributory negligence on the part of the plaintiff were for the jury. If, as some phases of the evidence go to show, the plaintiff, at defendant’s request, undertook to aid the defendant in the operation of the automobile by keeping a lookout and keeping the defendant posted as to their whereabouts as they proceeded, and plaintiff negligently failed to do so and this proximately contributed to his own injury, this would bar his right to recover. McGeever v. O’Byrne, 203 Ala. 266, 82 So. 508. If it should be conceded that the doctrine of assumption of risk is applicable to a case of this character, a matter of serious doubt (5 C. J. pages 142, 143; Shelby Iron Co. et al. v. Cole, 208 Ala. 657, 95 So. 47; Kansas City, Memphis & Birmingham Railroad Co. v. Flippo, 138 Ala. 487, 35 So. 457; Melton v. Birmingham Railway Light & Power Co., 153 Ala. 95, 98, 45 So. 151, 16 L. R. A. (N. S.) 467; Bierley v. Shelby Iron Co., 208 Ala. 25, 93 So. 829; McGeever v. O’Byrne, supra), under the pleadings and evidence it was not applicable to this case as presented in the trial court. There was no intimation in the agreement to plead in short that any such defense would be put forward, and there was no evidence showing or tending to show any defect in'.the automobile or the brakes, or, if there was, that the plaintiff had any knowledge thereof. As was observed in McGeever v. O’Byrne, 203 Ala. 260, 269, 82 So. 508, 511, “The phrase ‘assumption of risk’ is, however, sometimes loosely applied to cases where there was no contractual relation between the plaintiff and the defendant, but that use of the phrase ‘must be confined to cases where the plaintiff knew and appreciated the danger and voluntarily put himself in the way *244 of it.’ ” Charge 2, given at defendant’s request, pretermits such knowledge, and, besides being inapt and misleading, is unsound, and the court erred to reversal in giving said charge. While charge 1 given at the instance of the defendant appears to have been carelessly drawn, it is not inherently erroneous. The'other questions argued have been considered, but we deem it unnecessary to treat them; they are without merit. Reversed and remanded. GARDNER, THOMAS, and KNIGHT, JX, concur. Footnotes [1] <3=>For other casos see same topic and KEY NUMBER in all Key Number Digests and Indexes