Pybus v. McKinney
Pybus v. McKinney
Opinion of the Court
Appellant Pybus, plaintiff below, filed suit for damages against appellee arising out of a collision between his farm- tractor and' trailer and a pickup truck driven by ap-pellee. The jury returned-a verdict against the plaintiff who duly filed his motion for a; new trial. From the judgment denying his-motion, the plaintiff appeals..
- It appears that the plaintiff was operating a farm tractor, to- which was attached a two-wheel homemade trailer, in a; southerly direction on U. S. Highway 231,
Appellant makes several assignments of error, most of which are but restatements of three which he argues in brief:
(1) Appellant contends that it was error to fail to grant his motion for new trial on the ground that the verdict is against the great weight of the evidence. We have carefully reviewed the record. The evidence is in conflict as to whether the accident happened after dark (most witnesses testified that it was dark at the time) and if so, whether the plaintiff’s trailer was sufficiently lighted or lighted at all. This question of fact was properly submitted to the jury which obviously found against plaintiff on this question. There is evidence to support its finding, which is aided by the usual presumption.. There was no error in the court’s failure to grant the motion for new trial. See authorities at “^lOOS, Alabama Digest, Appeal & Error.
(2) Error is claimed in the court’s refusal to give plaintiff’s requested: unnumbered charge as follows:
“The Court charges the jury that the burden of proof is on the defendant to show that the plaintiff is guilty of contributory negligence.”
There is no error here. The Court gave Plaintiff’s requested charges numbered 1, 2, 3, and 4, which are substantially the same, if not more favorable to plaintiff, number 2 being as follows:
“The Court charges the jury that for the Plaintiff to be guilty of contributory negligence, the burden of proof is on the defendant to prove to your reasonable satisfaction that the plaintiff by his own negligence has so far contributed to his own injuries that but for such contributory negligence on his part his injuries would not have happened.”
It is not error to refuse a charge which is a mere restatement of a given charge. Aubrey v. Helton, 276 Ala. 134, 159 So.2d 837; Code 1940, Tit. 7, § 273, and many other authorities collated at ^260(1), Ala. Dig., Trial.
(3) Finally, appellant objects (quoting from the record) “to that portion of the court’s oral charge, which is to the effect that the plaintiff had the legal duty to' have placed on his trailer a tail-light that would shine or be shown, as required by the statutory law of Alabama.”
Without comment of the form of the above exception, suffice it to say that we have carefully read the court’s entire oral charge. When considered as a whole it states the law correctly and there is no reversible error in its statements concerning the matters complained of. Fuller v. Darden, 274 Ala. 447, 149 So.2d 805.
We view the assignments of error as without merit.
Affirmed.
Reference
- Full Case Name
- W. J. Pybus v. Harry McKinney.
- Cited By
- 2 cases
- Status
- Published