Harrison v. Wright , 215 Ala. 607 ( 1926 )

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.