Norwood Transp. Co. v. Stanford

93 So. 77, 18 Ala. App. 428, 1922 Ala. App. LEXIS 117

• Court: Alabama Court of Appeals
• Decided: April 4, 1922
• Docket: 6 Div. 984.
• Status: Published

Opinion

SAMFORD, J.

By a failure to insist upon them tbe appellant waives all of tbe assignments' of error, except as to tbe court’s refusal to give at its request in writing charges 6 and 8, and tbe refusal of tbe court to grant a motion for a new trial on tbe ground that tbe verdict of tbe jury was so excessive and contrary to the weight of tbe evidence.'

Charges 6 and 8 in tbe second alternative require too high a degree of care on tbe part of plaintiff. “Contributory negligence,” in its legal signification, is such an act of omission on tbe part of plaintiff, amounting to a want of ordinary care, as, concurring or co-operating with tbe act of defendant, is a proximate cause or occasion of the injury complained of. Thompson v. Duncan, 76 Ala. 334.

Again, contributory negligence, to. be available as a defense, must at least be a concurring proximate cause of the injury. 10 Michie’s Digest, 582, § 38.

Under the former rulings of this court and, of the Supreme Court, according to the facts as presented by this record, we cannot reverse the trial court for its failure to grant the motion for a new trial. Thompson v. So. Ry., 17 Ala. App. 406, 85 South. 591.

We find no error in the record, and the judgment is affirmed.

Affirmed.