This is an appeal by two, of three defendants, from a judgment for plaintiff, in an action for wrongful death of plaintiff's intestate. Verdict and judgment were against all three defendants, to wit, Kemp, Copeland, and Gamble. Kemp and Copeland appealed. Gamble was summoned to appear and unite in the appeal, but he has not done so.
The case went to the jury under Count B, which alleges that Kemp operated, for hire, motor vehicles known as wreckers to bring in disabled automobiles; that plaintiff's intestate, Clint Jackson, verbally contracted with or engaged from Kemp, for $40.00 which was paid to Kemp, a wrecker with a driver to bring intestate's disabled automobile into Birmingham from a place near Cullman; that Kemp, or his employee acting within the line and scope of his employment, requested intestate to ride in the cab of the wrecker from Birmingham to the place where intestate's automobile was, to show the driver of the wrecker where the automobile was and identify it; that intestate did ride in the wrecker from Birmingham to a place near Garden City where the wrecker, while en route, was in collision with another motor vehicle; that the wrecker was driven on said trip by Copeland who was the employee of Kemp; that the latch on the right door of the cab of the wrecker was, at the time intestate engaged the wrecker and at the time of collision, in a defective, dangerous, and unsafe condition; that, on the trip, the wrecker was involved in a collision with an automobile; that the defective latch on the right door of the wrecker failed to hold said door closed, the door came open, and intestate was thrown out of the wrecker through said open door and suffered injuries whereof he died; that Copeland, who was the employee of Kemp and acting within the line and scope of his employment, was negligent in so transporting intestate in the cab of said wrecker with said defective, dangerous, and unsafe latch, knowing the same to be defective, dangerous, and unsafe; that Gamble so negligently operated an automobile at said time and place that it ran into the wrecker, injuring intestate so that he died; that the injury
Defendants pleaded in short with leave, etc.
We understand that it is not disputed that intestate was driving his automobile toward Birmingham; that the automobile broke down near Cullman; that intestate left the car and went to Birmingham where he engaged a wrecker from Kemp to bring the car to Birmingham; that intestate and his brother got into the wrecker, which had one seat and was driven by Copeland as employee of Kemp, and proceeded toward Cullman; that Copeland was driving the wrecker and seated on the left side, intestate's brother was seated in the middle, and intestate was sitting on the right next to the right door of the wrecker.
It appears without dispute that when the journey began the latch of the right door of the wrecker was defective, and that defendant Copeland had prior knowledge of the defect. He testified as follows:
At some disputed time, at the beginning of or during the journey, Copeland undertook to fasten the right door with a chain. Evidence for appellants tended to show that the door was fastened with the chain before the wrecker left Kemp's garage. Evidence for plaintiff tended to show that the chain was not placed on the door until after the wrecker had proceeded several miles to the highway, and that intestate had no knowledge of a defective latch until that later time.
On the highway, the wrecker met a car driven by defendant Gamble. Evidence tends to show that Gamble drove his car so that it struck the left side of wrecker and knocked the wrecker over on its right side. The wrecker was stopped, or almost stopped, and on the right side or shoulder of the highway at the time of collision. There is no insistence that Copeland was negligent in the manner of driving the wrecker.
Copeland and intestate's brother did not suffer severe injury. Intestate suffered injuries which caused his death a few days later. After the collision, intestate was pinned under the right side of the wrecker. As to intestate's position, one witness testified as follows:
Intestate's brother testified that after the wrecker came to rest, intestate was pinned "down," and the right door of the wrecker "was bent all up. It was open."
This assignment recites as follows:
At page 132 of the transcript, the following appears:
Assignment 18 makes no reference to the refusal of any charge requested in writing by appellants. The assignment and the transcript, as quoted above, compel us to conclude that appellants are here complaining of the court's action in refusing to instruct the jury in accordance with a request which appellants made orally and not in writing. It has been held by this court that it will not reverse a judgment of the circuit court for its refusal to give a charge asked, unless it appear that such charge was put in writing as the statute provides. Jacobson v. State, 55 Ala. 151; Green v. State, 66 Ala. 40. The declination of a trial court to instruct the jury in consonance with, or on the subject of, verbal suggestion by counsel presents no matter for review on appeal, even though the suggestion was well founded. Mullins v. Lemley, 205 Ala. 593, 88 So. 831. See also: Brock v. State, 235 Ala. 304, 178 So. 548; Krasner v. Gurley, 248 Ala. 686, 29 So.2d 224; Keel v. Weinman, 266 Ala. 684, 98 So.2d 611; § 273, Title 7, Code 1940. Assignment 18 is without merit.
Assignment 4 is that the court erred in refusing to give at appellants' request the following written charge:
Without considering other possible defects, we are of opinion that Charge II is erroneous because it omits the element of appreciation on the part of the plaintiff's intestate. Although the charge requires the jury to be reasonably satisfied that intestate had knowledge of the defective condition of the door and the foreseeable results thereof, the charge fails to require that the jury be reasonably satisfied that intestate appreciated the danger. This court has said:
In Blashfield's Cyclopedia of Automobile Law and Practice, Permanent Edition, 1946, Vol. 4, Part 1, § 2515, page 721, the writer says:
While there is a distinction between contributory negligence and assumption of risk, Foley v. Pioneer Min. & Mfg. Co., infra, certain elements are common to both. With respect to contributory negligence this court has said:
So for the defense of assumption of risk to apply, we think "there must have been an appreciation or consciousness of the danger" with which the risk is attended. Charge II fails to require such appreciation and was refused without error.
Assignments 12 and 13.
These assignments take the point that the court erred in refusing the affirmative charge with hypothesis separately requested in writing by defendants Kemp and Copeland. Without extended discussion, we conclude that, inasmuch as Copeland was acting within the line and scope of his employment by Kemp, both Copeland and Kemp were liable or neither was liable.
These defendants assert that they were entitled to affirmative instructions for four reasons, to wit: (A) for that the evidence shows as a matter of law that intestate assumed the risk of the defective door and, therefore, no recovery can be had against appellants for his injury or death resulting from that defect; (B) for that the evidence shows as a matter of law that intestate was guilty of negligence which proximately
(C) It seems appropriate to consider first the contention that intestate was a guest under § 95, Title 36, Code 1940, which has been construed in Blair v. Greene, 247 Ala. 104, 22 So.2d 834; Sullivan v. Davis, 263 Ala. 685, 83 So.2d 434, 59 A.L.R.2d 331; Klein v. Harris, 268 Ala. 540, 108 So.2d 425. The rule of those cases is that if the trip is for any benefit to the driver, conferred or anticipated, it is sufficient to take the case out of the guest statute, but a mere incidental benefit to the driver is not sufficient. The benefit to the driver must in some way have induced the driver to extend the offer to the rider, and the benefit must be material and tangible and must flow from the transportation provided.
The evidence for appellants was to effect that intestate was permitted to ride the wrecker at his own request and for his own benefit merely. This evidence would justify a finding that intestate was a guest and not entitled to recover for an injury caused by simple negligence of the driver or operator of the wrecker.
On the other hand, defendant Kemp admitted that intestate made a payment to Kemp for sending the wrecker to bring in intestate's car. Intestate's brother, Charles, testified with respect to intestate's riding in the wrecker as follows:
We are of opinion that the jury could find that the carriage of intestate conferred a benefit on defendant, Kemp, which was material and tangible under the above stated rule and that, under the statute, intestate was not a guest but was a passenger to whom appellants owed a duty which has been stated as follows:
We do not understand appellants to contend that the jury could not find that transporting
(A) The familiar rule is that when the affirmative charge is refused and the party who requested the charge appeals, the entire evidence is viewed in the light most favorable to the opposite party, and where reasonable inferences may be drawn adverse to the party who requested the charge, the action of the trial court in refusing the charge must be affirmed. Louis Pizitz Dry Goods Company v. Harris, 270 Ala. 390, 118 So.2d 727.
We are of opinion that the evidence reasonably supports an inference that intestate did not voluntarily, with full knowledge and appreciation of the danger, assume the risk of the defective door latch.
Evidence for appellants is to effect that the chain was applied to the door before the wrecker left the garage. Appellants contend that under that view of the facts, intestate assumed the risk.
Evidence for plaintiff, however, is to effect that the chain was not placed on the door until after the wrecker had traveled out to the highway and rain had commenced to fall. The brother of intestate testified that at that time, the defendant Copeland "taken a chain and tied the door"; it was "A trace chain"; it was "looped" around the door handle; the other end of the chain was "tied" around a metal rod back of the seat; at that time the window glass was not all the way up; but the chain did not remain in that position. Intestate's brother testified as follows:
We understand that intestate's brother was holding the chain, as thus described, at the time of collision.
Clearly, intestate did not assume the risk at the time he left the garage in the wrecker if, at that time, the chain was not affixed to the door and intestate had no knowledge of any defect in the door latch.
Appellants argue, however, that intestate accepted the risk when he continued to ride in the wrecker after the chain had been placed on the door out on the highway. They state in brief:
Appellants' argument, as we understand it, is that, when the chain was placed on the door, intestate was bound to leave the wrecker or be deemed to have assumed the risk of injury resulting from the defective door latch.
An essential element of assumption of risk is that plaintiff must have exposed himself voluntarily.
If intestate had knowledge and appreciation of the danger, and also had a reasonable choice whether he should continue to ride in the wrecker or get out on
(B) This court has said: "* * * There is a well-defined distinction between assumption of risk and contributory negligence. * * *" Foley v. Pioneer Min. & Mfg. Co., 144 Ala. 178, 182, 40 So. 273, 274. Concerning the doctrine of volenti non fit injuria, this court has quoted with approval as follows:
We are not to be understood as disregarding the distinction between the two defenses. What has been said, however, with respect to the evidence supporting a reasonable inference that intestate did not assume the risk, applies also to contributory negligence. We are of opinion that the evidence reasonably supports an inference that intestate was not guilty of a failure to exercise reasonable care for his own safety. The issue of contributory negligence was submitted to the jury without error.
(D) Appellants argue that the only inference supported by the evidence is that, even if appellants be held guilty of negligence in transporting intestate with a defective door latch, such negligence of appellants was not the proximate cause of the injury, for the reason that the negligence of defendant Gamble in driving his car so as to strike the wrecker and knock it over was an independent, intervening cause that could not have been foreseen by appellants as a natural and probable consequence of their negligence in transporting intestate with a defective door latch, citing Louisville & N. R. Co. v. Courson, 234 Ala. 273, 174 So. 474.
In the Courson case, this court held that the negligence of the defendant railroad in maintaining a door in an improper condition was not the proximate cause of plaintiff's injury where the door was forced open by another passenger and glass from the door fell on and cut the plaintiff. The rule as to proximate cause was stated as follows:
As it appears to us, the evidence in the instant case reasonably supports an inference that the injury sustained by intestate, which caused his death, may have resulted solely from the force of Gamble's car when it struck the wrecker; that is, the wrecker door may have been forced open solely by the blow, and not because the latch was defective.
On the other hand, we think it could also be reasonably inferred that the defective condition of the latch concurred with the force of the blow from Gamble's car, so that the opening of the door of the wrecker was not caused solely by the force of the blow from Gamble's car, but also by the defective latch, and that, without the
Plaintiff's contention is that the defect in the latch was a concurring cause of the opening of the door; that the opening of the door caused intestate to fall or be thrown out of the wrecker and suffer injury which caused his death; and that, because appellants were negligent in transporting intestate in the wrecker with the defective latch, appellants are liable for the consequence of the defect, namely, intestate's death.
This court has said:
The evidence here supports an inference that a danger reasonably to be foreseen, as a natural result of the defective door latch, is the danger that the door might open and a person riding in the wrecker might fall or be thrown out of the door and injured. It was not necessary that the particular consequence of appellants' negligence with respect to the defect could have been foreseen by appellants. It was sufficient that the injuries sustained by intestate were the natural, although not the inevitable result of appellants' negligence respecting the latch. Intestate's being thrown out the door was an injury likely to ensue from the negligence of appellants, or, at least, the jury could reasonably so infer.
In Courson's case, glass falling out of the door was not the natural or likely consequence of the door's jamming and, therefore, injury from the falling glass was not reasonably to be anticipated as a foreseeable result of negligence in allowing the door to become defective and jammed or stuck. In the instant case, a passenger's falling or being thrown from the wrecker was a natural and likely consequence of the defective door latch and, therefore, injury to the passenger from so falling was reasonably to be anticipated as a foreseeable result of negligence in maintaining the defective latch. It is difficult to see how a door's becoming jammed or stuck would cause glass to fall out of the stuck or jammed door of the railroad coach. It is not difficult to see how a defective door latch would cause a passenger to fall or be thrown through the opened door of the wrecker.
We are not persuaded that the evidence requires us to hold, as a matter of law, that appellants' neglect, in knowingly transporting intestate with the defective door latch, was not a concurring, proximate cause of intestate's death. The affirmative charge with hypothesis requested by appellants was refused without error.
The judgment is due to be and is affirmed.
LIVINGSTON, C. J., and GOODWYN and HARWOOD, JJ., concur.