Birmingham Railway L. &. P. Co. v. Camp

49 So. 846 | Ala. | 1909

McCLELLAN, J.

The property injured, as a result of the collision of a street ear therewith, was the horse, buggy, and harness of the plaintiff. There was testi.mony tending to slow injury to the harness, but an entire absence of evidence of the extent, in damage, of the injury to the harness. On this state of the evidence the defendant requested this special charge, which was refused: “Under the evidence in this case, you cannot award plaintiff any damages for any injury to or damages to- the harness.” It was incumbent on the plaintiff, as a condition to a recovery of damages for the injury to the harness, to show, not only the injury, but to adduce some proof from which the jury would be authorized to measure that injury in money.— B. R. L. & P. Co. v. Harden, 156 Ala. 244, 47 South. 327; Buist v. Guice, 96 Ala. 255, 261, 11 South. 280. This was not done and the charge requested was erroneously refused.

■ Charges 3 and 8, requested by the defendant, were properly refused. The existence vel non of negligence cannot be determined by the honesty of belief or reasonableness of thought on the part of the one alleged to have been derelict. It may be important upon an inquiry of willfulness or wantonness. But negligence is imputable from the act or omission, and is not controlled by the belief or intent Avith which the act is committed- or the omission is 'permitted. — L. & N. R. R. Go. v. Young, 153 Ala. 232, 45 South. 238, 16 L. B. A. (N. S.) 301.

We think the refusal of charge 4, requested by the defendant, was erroneous. The testimony is without conflict that the rear end of the car was the part thereof inflicting the damage, and that by reason, as the plaintiff contended, of the “overhang” of the rear end as the car passed over the curve. One of the theories asserted by the defendant was that the injury was the result of the backing by the horse of the buggy into the rear end of the car, and not of the unaided, thereby, collision of the car with the vehicle. Obviously, if this insistence by defendant was credited by the jury, the injuries to plaintiff’s property were not the proximate result of negligence of defendant’s servant. The charge contains the hypothesis that, if the rear of the car would not have struck the vehicle unless the horse backed the buggy against the rear end of the car, the plaintiff could not recover. The hypothesized act was indicated by some tendencies of the evidence. Whether the jury would have-put faith in such tendencies we cannot know. The charge was not, in our opinion, calculated to mislead.

The third charge, given' for plaintiff, is not subject to the criticism of being misleading.

The suggestion of appellee that the charges for defendant were asked in bulk is not sustained by the record. The bill recites that “the defendant requested the court, separately and severally in writing, to give to the jury each of the following charges. The court thereupon separately and severally refused to give each of said written charges so requested by defendant. * * *”

For the errors indicated, the judgment is reversed, and the cause is remanded.

Dowdell, O. J., and Anderson and Mayfield, JJ., concur.