Birmingham Sterling Beer Distributors, Inc. v. Bradley

BROWN, Justice.

Action on the case by the mother to recover damages resulting to her from an injury to her minor son, in the loss of service, and expense in time and 'money in the treatment of his injuries. .

*241 The injuries resulted from a collision between the defendant’s truck driven by its agent, Smith, and a motorcycle in the posséssion of the plaintiff’s son, Willie Lee Hardy, at the intersection of Eighteenth Street — a part of the "Montgomery Highway out of Birmingham- — and Twenty-Ninth Avenue in Homewood. The case went to the jury on count A ascribing the injury to the negligence of the defendant’s servant or agent, and the defendant’s pleas, the general issue and contributory negligence, pleaded in short by consent. The trial resulted in a verdict for plaintiff for $633, followed by judgment, after motion for new trial overruled.

The evidence, to say the least, was in sharp conflict on both the issue of negligence and contributory negligence, the evidence preponderating in defendant’s favor. The closing argument of plaintiff’s counsel set out in full in the bill of exceptions is interlaced with statements of facts, not supported by the evidence, which tended to overbalance the preponderancy in the evidence, and some of the statements were not only improper, but were ineradicable.

We are, therefore, of opinion that the motion for new trial should have been granted, and that the circuit court erred in its denial. Crotwell et al. v. Cowan, et al., 236 Ala. 578 , 184 So. 195 ; American Ry. Express Co. et al. v. Reid, 216 Ala. 479 , 113 So. 507 ; Moore v. Holroyd, 219 Ala 392, 122 So. 349 .

The judgment of the circuit court is therefore reversed; the motion for new trial granted; and the cause is restored to the trial docket in the circuit court for further proceeding thereon.

Reversed, rendered and remanded.

ANDERSON, C. J., and THOMAS, and KNIGHT, JJ., concur.