126 Ala. 135 | Ala. | 1899
The record in this case sIioavs no judgment by the court upon either the demurrer to the complaint, or the- demurrer .to the pleas. A statement in the record that “a .demurrer to each count in the complaint is by the court overruled, and a demurrer to pleas No. 4, 5, 6, 7 and 8 sustained by the court,” is nothing-more than a recital or memorandum of the clerk. It •has been several times recently decided by this court that assignments of error based upon such recitals cannot be considered.—Cartlidge v. Sloan, 124 Ala. 596; McDonald v. Ala. Mid R’y. Co., 123 Ala. 227, Avliere other cases are cited.
There were nine pleas filed' to the complaint and demurrers were interposed to the 4th, 5th, 6th, 7th and 8th pleas, and the record failing to sIioav any judgment by the court upon the demurrers, they will be regarded as having been Avaived, and the judgment entry reciting that “issue being joined,” etc. without specifying any particular pleas, it must be considered here, that issue was joined upon all of the pleas.
The injury for AA’hich damages are claimed, vas' caused
This then presents the simple question as to whether the manner of the driving of the hose cart, ,as shown by the undisputed evidence, upon or across the tracks of the
While the complaint contained two counts, one upon simple negligence and the other for wanton or willful wrong, the pieas of contributory negligence were pleaded to.the entire complaint, and issue being joined upon them, the case is to be tried upon the pleading as made up by the parties, and the evidence without conflict sustaining the pleas of contributory negligence, the defendant was entitled to the affirmative charge as requested.
The court against, the objection of the defendant admitted in evidence an ordinance of the city giving the right of way in the streets of the city, to fire apparatus when on duty, oyer pedestrians and vehicles. As we have stated above, under the facts in this case, it was ■immaterial which had the right of way, the car or hose cart, the ordinance was irrelevant, as its only purpose in being introduced was to show that plaintiff’s wagon had the right of way.
That part of the oral charge of the court excepted to by the defendant, which instructed the jury that “It does not make any difference in this action whether the driver of the hose wagon was guilty of negligence or not. unless his negligence was the sole cause of the accident,” was under the issues and facts erroneous.
As we have stated that under the issues and upon the undisputed facts in the case, the court should have given the affirmative chame as requested bv the defendant, we deem it unnecessary to consider the other assignments of error based upon charges refused by the court to the defendant.
For the errors pointed out the judgment of the court is reversed and the cause remanded.