144 Ala. 317 | Ala. | 1905
Taking up the assignments of error in the order suggested in appellant’s brief: The assignments on the overruling of the demurrer to the various counts, on the ground that said counts failed to allege in what county the injury occurred, if they were valid, were fully met by the amended complaint, which, in each count, alleges that the collision took place in the city of Anniston, Alabama, which city the court judicially knowis is in the county of Calhoun.
Counts 2, 3 and 4, as amended, and counts 5 and 6 allege that the occurrence was in a populous district, in the city of Anniston, where a great many persons, horses and vehicles are accustomed to pass.
• The duty of a motorman running a street car in a populous city, to keep a lookout for persons, liable to be run over by the cars, is not confined to street crossings, but is applicable to the entire line of the street, over which people have a right to pass at any time. — Nellis on Street Surface Railroads, p. 293, § 8, p. 298, ■ § 9, pp. 319-20. This relates however to the question of negligence. The car may be moved rapidly between crossings, but this does not warrant the inference that it may be run without caution. A failure to keep a proper lookout is negli
Amended count No. 2 alleges only simple negligence, the words “Even though he was conscious,” etc., in the latter part of the count being merely the recital of a conclusion based on previous' statements, and not the allegation of a fact.
A similar expression in count No. 3 brings it into the same category, but count 4, as amended, fails to allege facts constituting wilful, wanton or reckless conduct, and the demurrer to the same should have been sustained.
The 3rd cause of demurrer should have been sustained as to the 8th count of the complaint. Said count alleges simple negligence, and does not show why the plaintiff was on the track. — Ensley Ry. Co. v. Chewning, 93 Ala. 25; Montgomery v. A. G. S. Ry. Co., 97 Ala. 305. Nor does said count show any causal connection between the violation of the city ordinance and the injury inflicted. So. Ry. Co. v. Prather„ 119 Ala. 588, 593.
The manner of reference, in the 6th count, to other counts, for the facts, is allowable and the count not demurrable.
The fact that demurrer had been sustained to the 1, 2 and 3 counts, did not cause them to cease to be a part of the record, to which reference could be had. — Morrison v. Spears, 8 Ala. 93; Mardis v. Shackleford, 6 Ala. 433; Robinson v. Drummond, 24 Ala. 174.
The 5th count sufficiently charges simple negligence, and the demurrer to same was properly overruled. The
The demurrers to pleas to counts 2, 3, 4, 5, 6 and 7 of the complaint were sustained on the theory that all those counts alleged wilfulness, or wantonness, on the part of the defendant, but, while count 6 did allege reckless, wilful or wanton conduct on the part of the defendant, the others alleged only simple negligence. As to No. 4, in addition to what has been ©aid of that count in a previous part of this opinion, the allegation of running at a speed greater than that allowed by the city ordinance was only simple negligence.
Count No. 5 does not allege any facts going to show reckless, wanton or wilful conduct on the part of the defendant, and count 7 distinctly charges only “negligence.” Consequently, the court erred in sustaining the demurrers to the pleas of contributory negligence to said counts.
Referring to that part of the oral charge of the court, which was excepted to by the defendant, while there are expressions in it which might mislead the jury on the subject of wlhat is necessary to* constitute wilfulness or wantonness, as distinguished from simple negligence, and a part of it is correct, yet the final statement is that if the motorman “Saw the plaintiff in peril, or danger on the track, or could have seen him by the exercise of ©aid diligence or care and failed to use the means at his command to stop the car, after plaintiff’s danger was apparent, before it ran against the plaintiff’s wagon, then such conduct would be equivalent to a wilful, wanton or intentional act.”
In addition to the fact that it does not state to whom his danger became apparent, it failed “to postulate wanton or wilful conduct on the part of the motorman in not stopping the car. I-Iis .failure might have been due to inadvertance or simple negligence.” — A. G. S. Ry. v. Williams, 140 Ala. 230, 235, 238. The charge was erroneous.
Charges 11, 12 and 35, requested by the defendant, were properly refused by the court, as this form of charge has been frequently condemned by this court.
T!he court committed, no error in refusing to give the 17th charge requested by defendant, as it was a matter for the jury to determine from the evidence, whether or not the circumstances were such as to justify them in finding that the motorman wilfuliy, wantonly or intentionally ran the car against the wagon.
The 1st charge requested by the defendant was properly refused by the court, as some of the pleas set up facts which would constitute a full defense to some of the counts of the complaint, lbut not to others, and it depended on what state of facts the jury considered established by the evidence whether or not the defense set up in the plea was sufficient.
Without noticing other objections, charges 2, 3, 10, 16, 27, 28, 31, 32, 33 and 37, were properly refused, because, they ignored the possibility of the jury finding that the motorman wilfully, recklessly, • or intentionally ran the car against the wagon. The defendant claims that these charges should have been given, because even the counts which profess to allege wilful or wanton conduct are in trespass, and there is no pretense of evidence sustaining such counts.
The 6th count is in case. — City Delivery Co. v. Henry, 139 Ala. 161, 166-7. And there being a count charging wilfulness or wantonness and facts in evidence which rendered it necessary to leave that matter to the jury, it would not have been proper to give charges on the subject of contributory negligence, without the hypothesis.
Charge 22 was properly refused, as the witness stated that the accident occurred in the city of Anniston, on a certain street, describing the locality as opposite one of the hotels in that city. In the absence of any proof to the contrary, the jury would have a right to find that it was within the corporate limits of that city.
The judgment of the court is reserved and the cause remanded.