92 So. 111 | Ala. | 1921
Lead Opinion
Armour Co. bring this suit against the Alabama Power Company for damages for injuries to an automobile of plaintiff's in collision with a street car belonging to defendant. There was judgment of the court on verdict of the jury in favor of the plaintiff for $74.91, and defendant appeals.
On former appeal it was in the Court of Appeals. Armour Co. v. Ala. Power Co.,
The errors from 1 to 9, insisted on by appellant, are based on the court refusing to hold a plea of set-off good, and contributory negligence pleas good, against a wanton count. The set-off claimed grows out of the same collision alleged in the complaint. This plea sets up and claims damages to the street car of the defendant by alleged contributory negligence of the plaintiff. The court sustained demurrers to these pleas of set-off and contributory negligence to the wanton count of the complaint. In this there was no error.
The defendant by one of these pleas attempts to set off its damages to its street car, growing out of an alleged contributory negligence act of plaintiff, against the wanton act of defendant, damaging the automobile of plaintiff. A contributory negligence plea is no answer to a wanton act charged in a complaint; and those pleas setting up contributory negligence of plaintiff to the wanton count were subject to the demurrer. So. Ry. Co. v. Yancey,
Written charge No. 1, asked by plaintiff, was given by the court. The words "even though" therein did not render its giving reversible error. The case of L. N. R. R. Co. v. Abernathy,
"(2) I charge you, gentlemen of the jury, that the defendant's motorman owed the plaintiff's agent the duty to have sounded the gong on the street car at the time and place of the accident or injury, and if you find that he negligently failed to do so, and this negligence proximately caused the injury, then the defendant would be liable."
The undisputed evidence showed that the motorman of the street car saw the running automobile, saw the danger and peril to the car and the automobile before the collision, and the street car was running, and he did not sound the gong. This undisputed evidence made it his duty to devote his energies to sounding the gong and using his brakes and other agencies for stopping his engine and preventing the injury. This undisputed evidence rendered the first part of the charge correct. L. N. R. R. Co. v. Mitchell,
The evidence for plaintiff tended to show that the motorman "after seeing and so realizing the danger * * * had time to have sounded his gong and thereby prevented the accident." The testimony of the motorman tended to show in substance:
"That from the time he saw the automobile until the automobile struck the street car, he only had time to bring the car to a standstill, and step back out of the way of flying glass."
Under this disputed evidence the court properly instructed the jury in the charge stating:
"If you find that he negligently failed to do so [sound the gong] and this negligence proximately caused the injury, then the defendant would be liable."
It was for the jury to declare whether the motorman had time to sound the gong, whether he was guilty of negligence in failing to do so, and whether he should exercise his agencies in stopping the car or sounding the gong or both. This issue was for the jury to settle. This charge so left it. L. N. R. R. Co. v. Young,
Charge 1 refused defendant by the court is the general affirmative charge. In this case all material issues are in direct conflict by positive evidence or reasonable inferences therefrom, and therefore this charge could not be given by the court. John v. B'ham Realty Co.,
Charge 2 is on set-off plea of defendant. The court did not err in refusing it. It called for verdict for defendant on plea of set-off, if the driver of plaintiff's automobile was guilty of negligence which proximately caused the damage to the street car. It ignores the wanton count of the complaint and the evidence tending to sustain it. So. Ry. Co. v. Yancey,
Charges 4 and 5 of defendant, refused by the court, invade the province of the jury. These were questions for them to settle from the evidence, and not for the court to do so as a matter of law. Tobler v. Pioneer Min. Co.,
The witness Taylor testified that he had driven automobiles for the past six or seven years; was familiar with them. This one was worth before the accident $325. It was comparatively new. After the collision both fenders on one side were knocked off, big dent in the body of the car; an axle was broken or bent, or two castings cut. He was not a mechanic, never dealt in cars, had heard people state what they had gotten for different damaged cars. This witness was *18
competent to testify as to the market value of the automobile after and before the collision. Under the evidence he showed sufficient personal knowledge of and familiarity with automobiles and their prices personally, and from hearsay as to their value when damaged, to make statement of his opinion on the value relevant. Its weight and credibility was with the jury. Section 3960, Code 1907; Ward v. Reynolds,
When cars are running on the same road or street, in the same direction on parallel line, as one draws closer and passes the other, or is left gradually more and more in the rear of the other, the eye can with ease discern which is running the faster. It is a fact that the mental vision can perceive, and on which there can be positive testimony. When cars are running towards each other, as to which is running the faster is not so easily seen by an observing eye; but a person accustomed to observing the speed of cars can give, frequently, accurate judgment as to the rate of speed of each Then as to which is running the faster is a matter of calculation, and not of opinion. These cars were running toward each other. There was a collision. The witnesses were permitted by the court to testify as to the speed of each. This they did. They were not permitted to testify as to which was running the faster. This fact from the testimony was a matter of calculation. It called for a conclusion which the jury could reach without the aid of a calculating witness. If in this the court erred, it is without injury, as the jury from the evidence could answer the question from the facts given them. Highland Ave. Belt R. R. Co. v. Sampson,
The court sustained objection of plaintiff to this question, asked A. M. Wade by defendant:
"I will ask you whether, at the speed you were going, and the speed he was going, if he had waited to make his turn until he got on the other side of Cooper street, on the south side of Fifteenth, whether there would have been any collision at all?"
This called for a conclusion and opinion of the witness. The witness should testify to the facts and circumstances, and let the jury form the opinion and draw the conclusion. The court did not err in sustaining plaintiff's objection to this question. Ray v. Brannan,
We find no reversible error in the record, and this case is affirmed.
ANDERSON, C. J., and SAYRE and GARDNER, JJ., concur.
Addendum
A majority of the court, composed of ANDERSON, C. J., and SAYRE, SOMERVILLE, and THOMAS, JJ., are of the opinion, and so hold, that the trial court erred in giving the plaintiff's requested charge 2. The first part of it invaded the province of the jury, as it was for them to decide whether or not it was the motorman's duty to have sounded the gong under the circumstances disclosed by the evidence. Indeed, the original opinion seems to concede this, but holds that this erroneous statement was so cured or neutralized as to render the charge merely misleading; but the majority think that the charge in its entirety was erroneous, and not merely misleading. While the latter part of said charge hypothesized that, if he negligently failed to do so, etc., the first part had already charged that it was his duty to do so, and in effect that he was guilty of negligence, and this error was not cured by the remainder of said charge.
Application for rehearing granted, judgment of affirmance set aside, and reversed and remanded.
McCLELLAN, GARDNER, and MILLER, JJ., adhere to the original opinion, and dissent from the reversal of the case.
