Henley v. Lollar ( 1950 )

CARR, Judge.

In the court below the plaintiff recovered a judgment against the defendant in a suit for property damages and personal injuries sustained by the former in an automobile collision.

Appellant’s counsel in brief cogently urges that the defendant below was due the general affirmative charge. The insistence is based primarily on the position that under the undisputed evidence the appellee was guilty of contributory negligence.

It affirmatively appears that the record does not contain all the evidence. A photograph was taken of the appellee’s automobile soon after the collision. This does not appear in the record, nor has it been certified to this court for our inspection.

Several of the witnesses were interrogated while this picture was displayed and many questions were directed in an effort to' describe and explain what was depicted in the photograph. At one place in the proceedings a witness was asked this question r “Looking at that picture, where is the point of impact—where is the main point of impact on that automobile?” The court sustained the objections of appellant’s attorney and as- a basis for his ruling stated: “The picture is the best evidence.”

It appears also that a drawing was made of the intersection of the streets where the collision occurred. With reference to this drawing the record discloses the following:

“Q. Let me show you what I mean. Here, let me make this drawing here (drawing).

“Mr. Rosenfeld: He was riding on the left of the midline of—the right on the midline of 26th Avenue?

“The Witness: Yes.

“Q. That is the middle of that intersection—9th Street and 26th Avenue. That is east and that is west and this is north and this is south, and we are assuming that that is the center (indicating). You came right to that center there didn’t you? You came from over here on the—came right over here (indicating) ? Came and split that center and you had the wreck right along there South of the center?”'

This drawing became a part of the evidence’ in the case. Taylor v. State, 249 Ala. 130, 30 So.2d 256; Kabase v. State, 31 Ala.App. 77, 12 So.2d 758.

What we have said clearly demonstrates the wisdom of the rule which provides that all the evidence must be before the appellate court before the propriety vel non of the refusal of the general affirmative charge can be reviewed. Alabama Terminal R. Co. v. Benns, 189 Ala. 590, 66 So. 589; Bates v. Louisville & N. R. Co., 21 Ala.App. 176, 106 So. 394; York v. State, Ala.App., 39 So.2d 694.

The same rule applies with equal force to a review of the action of the court below in denying the motion for a new trial on grounds that the verdict is contrary to the great weight of the evidence. Mobile City Lines v. Alexander, 249 Ala. 107, 30 So.2d 4; York v. State, supra.

The remaining assignment of error is:

“3. The Trial Court erred in its oral charge to the jury as follows:

“ ‘Now, there is a rule of law as to subsequent negligence. Of course, a man is required throughout a given course of conduct to act as a reasonably prudent man would have acted under like or similar circumstances, and, if as conditions changed, the defendant failed to exercise that degree of care which a reasonably prudent man would have exercised under the circumstances at -that time, and this proximately caused plaintiff’s injuries, then, of course, plaintiff would still be entitled to recover and provided his own contributory negligence as I have defined contributory negligence, did not proximately contribute to cause his injuries.’ ”

It cannot be successfully contended that the above excerpt is an erroneous statement of the law. At most, it may be classified as an incomplete pronouncement of the doctrine of subsequent negligence.

An omission in the oral charge cannot be raised by an exception to the charge or any part thereof. Counsel’s remedy, under such circumstances, is to request special written instructions or explanatory charges. Loeb v. City of Montgomery, 7 Ala.App. 325, 61 So. 642; Davis v. State, 246 Ala. 101, 19 So.2d 358; Davis v. State, 33 Ala.App. 188, 31 So.2d 377.

The judgment of the court below is ordered affirmed.

Affirmed.