124 Ala. 621 | Ala. | 1899
— Counsel for appellant, in their brief, expressly decline to discuss the 2d, 3d, 4th, 5th and 6th assignments of error, all of which relate to rulings on the evidence, and we will therefore not consider the same, accepting their refusal to discuss these assign-ments as a waiver of the- same.
Neither did the court err in excluding, on the motion of appellee, the statement by the witness Vineyard in regard to the action of the appellee in driving his wagon that, “I considered that a signal for me to come ahead.” This was not the statement of a collective fact, as contended by counsel for appellant, but a statement of a mental operation of the witness — the opinion or belief of the witness. The proper test was not what the witness considered as a signal to “come ahead,” but whether he had a right to consider the conduct and action of appellee as a signal, and this was a fact for the jury to determine from the other facts in evidence. — McCorCormick & Richardson v. Joseph & Anderson, 77 Ala. 276.
The real question involved in this case, as conceded by the counsel in argument, is that of wantonness vel 11011.
In behalf of the plaintiff but two witnesses were examined who had any knowledge whatever of the facts which constituted the wantonness as alleged' in the third count of the complaint. The plaintiff was one of these witnesses and Ií. K. White the other. The plaintiff never saw the car that struck him until he recovered his consciousness after his injury, and therefore his evidence has no tendency to show whether the conduct of the motorman was the result of simple negligence or wantonness. The testimony of White tends to
The judgment of the Circuit Court is reversed and the cause remanded.