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10/09/69 MILTON HENRY ISAY v. MOIS N. CAMERON

October 9, 1969

MILTON HENRY ISAY
v.
MOIS N. CAMERON



Lawson, Simpson, Merrill, Coleman, Harwood, Bloodworth and Maddox, JJ., concur.

Livingston, C. J., Dissents.

PER CURIAM.

This is a suit for damages for personal injuries and property damage alleged to have been sustained by appellee, plaintiff below, as a result of a collision involving appellee's vehicle and the vehicles of appellant Isay and of the defendant Kilmer. The case was tried on May 10, 1967.

The complaint contains one count alleging simple negligence on the part of the defendants Isay and Kilmer in the operation of their automobiles. Both defendants pleaded in short by consent.

At the Conclusion of the evidence and instructions by the court, the case was submitted to a jury who returned a verdict in favor of the plaintiff and against the defendant Isay, appellant, for the sum of $5,000.00 and in favor of the defendant Kilmer. Defendant Isay's motion for a new trial was overruled by the court.

The supersedeas bond was filed by defendant Isay and service of notice of appeal was accepted by counsel of record for plaintiff. Notice to join in appeal was accepted by counsel of record for defendant Kilmer.

The three-vehicle accident made the basis of this lawsuit occurred in Montgomery, Alabama, on July 8, 1966, on the Southern By-Pass near its intersection with Norman Bridge Road. The Southern By-Pass runs generally east and west and has two lanes of travel in each direction. The three vehicles involved in this accident were proceeding west and were in the outside land of travel. The plaintiff's automobile was ahead of the other vehicles, being followed by the vehicles of defendant Isay and defendant Kilmer, respectively.

There was no dispute that Isay's vehicle collided with the vehicle of the plaintiff, nor was there any dispute that Kilmer's vehicle collided with Isay's vehicle. The evidence is in conflict, however, as to the cause of Isay's vehicle striking the vehicle of the plaintiff. Isay's contention was that his vehicle was stopped behind the plaintiff's vehicle and was knocked into the rear of the latter when co-defendant Kilmer's vehicle struck his vehicle in the rear. Plaintiff's contention was that her vehicle was first struck by the vehicle of the defendant Isay from the rear before Isay's vehicle was struck by Kilmer's vehicle, the latter resulting in a second impact between Isay's vehicle and that of the plaintiff.

Each defendant contended at trial that there was no negligence on his part which proximately caused plaintiff's injuries and damages.

There are six assignments of error on this appeal, only three of which are substantially argued in brief. Therefore, our attention will be restricted to assignments of error 1, 4 and 6. Assignments of error 2, 3 and 5 are waived. Supreme Court Rule 9, Tit. 7, App., Code 1940

Assignment of error 1 is predicated upon the action of the lower court in giving the following charge at the request of the defendant Kilmer:

"IV. I charge you, gentlemen of the jury, that if you are reasonably satisfied from all the evidence in this case that Milton H. Isay struck the automobile of the plaintiff, Mrs. Cameron, and proximately caused injury to Mrs. Cameron, you cannot find a verdict against Edna L. Kilmer for the injuries caused by Milton H. Isay."

Charge IV is totally bad. In the first place, the word "negligently" should have been inserted before the word "struck." Secondly, the charge pretermits all the evidence that the Kilmer car knocked Isay's automobile into that of the plaintiff. Thirdly, it withdraws any consideration of the negligence of Kilmer from the jury, irrespective of the fact that both the plaintiff and defendant Isay contended that Kilmer's negligence was the partial or total cause of plaintiff's injuries.

In order to fasten liability on a defendant in a suit alleging negligence, the plaintiff must not only show that the defendant was negligent, but the proof must show that the negligence charged proximately caused the injury. Alabama Power Co. v. Berry, 254 Ala. 228, ...


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