Opinion
3 Div. 776.
November 4, 1926. Rehearing Denied March 31, 1927.
Appeal from Circuit Court, Montgomery County; Walter B. Jones, Judge.
Lee Graves, of Montgomery, for appellant.
Construing the allegations of the complaint most strongly against the pleader, it shows clearly that the plaintiff was guilty of negligence proximately contributing to her injury. Demurrer should have been sustained. Nicolosi v. Clark, 169 Cal. 746, 147 P. 971, L.R.A. 1915F, 638, 12 N.C.C.A. 864, 881. The evidence showed without dispute that the plaintiff was guilty of negligence proximately contributing to her injury, and the affirmative charge was due the defendant. L. N. v. Hall, 87 Ala. 708, 6 So. 277, 4 L.R.A. 710, 13 Am. St. Rep. 84; Wood v. Richmond, etc., 100 Ala. 660, 13 So. 552; Schlaff v. L. N., 100 Ala. 377, 14 So. 105. Want of ordinary care on the part of the party injured amounts to negligence which will defeat a recovery. 29 Cyc. 513-515. If the negligence of the injured party contributes in any degree to the injury, no recovery can be had. 29 Cyc. 510, 511. One who continues voluntarily to expose one's self to a known peril, and is thereby injured, cannot recover therefor. Republic I. S. Co. v. Fuller, 6 Ala. App. 448, 60 So. 475; Alteriac v. West Pratt Coal Co., 161 Ala. 435, 49 So. 867; Gainer v. Ry. Co., 152 Ala. 186, 44 So. 652; Southern Cot. Oil Co. v. Walker, 164 Ala. 33, 51 So. 169.
O. P. Lee and Thos. B. Hill, Jr., both of Montgomery, for appellee.
The complaint is sufficient. C. C. Snyder Cigar Co. v. Stutts, 214 Ala. 132, 107 So. 73; Bugg v. Mitchell, 20 Ala. App. 555, 103 So. 713; B. R. L. P. Co. v. Barrett, 179 Ala. 274, 60 So. 262; Sloss Co. v. Weir, 179 Ala. 227, 60 So. 851. The question of contributory negligence vel non is one of fact for the jury, except in a case where the only deduction to be drawn from the evidence is that the negligence of the plaintiff is the proximate cause and not a mere remote condition to the injury. 20 R. C. L. 117; Briggs v. B. R. L. P. Co., 188 Ala. 262, 66 So. 95; Ray v. Brannan, 196 Ala. 113, 72 So. 16. Plaintiff was where she had a right to be, and had a right to rely upon the presumption that appellant would not breach the legal duty owed her to keep a safe distance away so as not to injure her; therefore she cannot be held guilty of negligence either as matter of fact or law. 20 R. C. L. 117.
The case of plaintiff was stated in counts 1 and 3 to which demurrers were overruled. There was no reversible error in overruling demurrers to said counts of the complaint. The defense of contributory negligence is the subject of special pleas — which were duly interposed.
The reasonable tendencies of the evidence to be drawn by the jury prevented the giving of affirmative instruction requested. McMillan v. Aiken, 205 Ala. 35, 40, 88 So. 135.
If there is conflict in the evidence, or reasonable inferences thereof, whether in the testimony of the different witnesses or the direct or cross-examination of the same witnesses, the rule as to affirmative instruction is the same. Jones v. Bell, 201 Ala. 336, 77 So. 998. The effect of the testimony of one witness of material consideration at the time of the accident was:
That the "truck had not stopped until after the car driven by * * * Harrison ran into them, but that they stopped as soon after that as they could, and that they all crowded up, cars in front and cars behind."
The testimony of other witnesses was to the effect that the accident happened just after the truck turned off the highway, but while it was still on the main road; that neither the truck nor the car was traveling fast; that all, in front and behind the car, had been slowly driving, as there was quite a congestion on the road; and that everybody was going in the same direction. There was also adverse inference that may be drawn as to the giving or the failure thereof of due signals on the part of the driver of the truck that a stop was necessary or going to be made. So, also, as to reasonable inferences of the manner of the impact or brakes on the rear car; that is to say, whether that car was driven into the one on which plaintiff was riding or after due application of brakes in condition the rear car "slid" into the truck, and as to the distances apart the two cars were being driven, and whether or not due signals of stop were given or ignored, etc. This illustrates that the questions of negligence — simple and contributory — were for the jury.
Affirmed.
ANDERSON, C. J., and SOMERVILLE and BOULDIN, JJ., concur.