Opinion
5 Div. 905.
April 17, 1934.
Appeal from Circuit Court, Jefferson County; F. Loyd Tate, Judge.
Action for damages by W. W. Bowman against J. S. Robertson, doing business as Woco Pep Company of Tuscaloosa. From a judgment for plaintiff, defendant appeals.
Affirmed.
This charge was refused to defendant: "A. The court charges the jury that the defendant cannot be held liable for the killing of the mule as charged in the complaint unless he was guilty of such conduct as would amount to wilful and wanton conduct."
Reynolds Reynolds, of Clanton, for appellant.
The operator of an automobile on a public highway must use such care as a reasonably prudent man would under like circumstances; the highest degree of care not being exacted. Hester v. Hall, 17 Ala. App. 25, 81 So. 361; Demarco v. Gober, 19 La. App. 236, 140 So. 64. He is only liable to animals straying upon a highway in violation of law in cases of gross negligence. 42 C.J. 1963; Park v. Farnsworth, 98 Misc. 482, 164 N.Y.S. 735; Dillon v. Stewart (Tex.Civ.App.) 180 S.W. 648; 1 Blashfield, 699. Where a verdict in favor of one party is supported by a scintilla of evidence, and the evidence was overwhelmingly or by a great preponderance against the verdict, then upon motion a new trial should be granted. Mooneyham v. Herring, 204 Ala. 332, 85 So. 390.
Lawrence F. Gerald and Grover C. Walker, both of Clanton, for appellee.
Where the evidence is in dispute, unless there is an overwhelming preponderance against the verdict, it will not be disturbed on a motion for new trial or appeal. Cobb v. Malone, 92 Ala. 630, 9 So. 738. Animals and automobiles have equal rights on the highway, and the operator of an automobile is under prima facie duty, at least, not to run over or into an animal upon a public highway. Charge A was properly refused. Maddox v. Jones, 205 Ala. 598, 89 So. 38; Smith v. Clemmons, 216 Ala. 52, 112 So. 442. There is no degree of negligence recognized in Alabama as gross negligence, and the word "gross," when used in connection with "negligence," implies nothing more than simple negligence. Ex parte Priester, 212 Ala. 271, 102 So. 376; Stringer v. Ala. M. R. Co., 99 Ala. 397, 13 So. 75; Ala. G. S. R. Co. v. Hall, 105 Ala. 607, 17 So. 176.
This cause was tried and determined in the court below on count 1 of the complaint, to which defendant (appellant) pleaded the general issue in short by consent, and contributory negligence.
Appellee sued appellant to recover $150 as damages for negligently killing a mule, property of plaintiff. The jury returned a verdict in favor of plaintiff, and assessed damages at $125. Judgment was accordingly entered, from which this appeal was taken.
On the trial there was no dispute that the mule in question was killed in a collision with appellant's gasoline truck, etc. There is no reason why the evidence should be set out in detail. In some material aspects the evidence was in conflict, therefore presenting a jury question. The affirmative charge requested by appellant was properly refused.
On the material, in fact controlling, question, the alleged negligence of appellant's agent, the court properly stated the law governing the issue in this case. In this connection the court charged the jury, after defining negligence: "If they were reasonably satisfied that the death of the mule was the direct and proximate consequence of the negligent handling of this truck, that the defendant would be liable, but that if this was not the cause, then their verdict should be for the defendant."
Charge A was properly refused. Maddox v. Jones, 205 Ala. 598, 89 So. 38; Smith v. Clemmons, 216 Ala. 52, 112 So. 442.
Other charges refused to defendant were either erroneous, misleading, or fairly and substantially covered by the oral charge of the court and by charges given at the request of defendant.
The motion for a new trial was properly overruled, and the action of the court, under governing rules, will not be disturbed.
Affirmed.