141 Ala. 614 | Ala. | 1904
This action is on account of personal injuries sustained by plaintiff in being knocked from a wagon by a car operated by defendant on a street of the city of Birmingham. The complaint consists of four counts to all of which was pleaded the general issue and a plea setting up contributory negligence on the part of the plaintiff. Issues were joined and the case tried on these pleas. Assignments of error are predicated solely of rulings on demurrers to the complaint and of the giv
There was evidence tending to show that at the time of the accident, plaintiff was selling milk from a wagon to which was hitched a horse she had driven across the railroad track and had stopped SO' that the wagon stood in the path of the car; that before crossing she looked for the car and saw none; that there was on the wagon a cover which was between her and the car and that she did not know of the car’s approach until it struck the wagon. There ivas also .evidence tending to show that defendant’s servants in charge of the car were aware of the danger to plaintiff in time to have stopped the car before it reached the wagon. This last phase of the evidence was, however, opposed by the testimony of defendant’s motorman and conductor, to effect that, the wagon was backed in the way of the car when it was too late to prevent the collision and that until it was backed the wagon ivas several feet aAvay from the track.
While running the car along the public street defendant’s servants were under the duty of keeping a diligent lookout for persons using the street including the space occupied by the railroad track, and if the collision would not have occurred but for a negligent failure of defendant’s servants to keep such lookout, or to stop the car after discovery by them of the danger to plaintiff, then such a negligence as plaintiff may have been guilty of in causing or alloAving the Avagon to be-in the way of the car would not be deemed a proximate cause of the injury and .she would not be thereby precluded from recovering for such negligence on the part of those servants. S. & N. Ala. R. Co. v. Sullivan, 59 Ala. 272; Memphis & C. R. Co. v. Womack, 84 Ala. 149; Memphis & R. Co. v. Martin, 131 Ala. 269; Central of Georgia R. Co. v. Lamb, 124 Ala. 172; Central of Georgia R. Co. v. Foshee, 125 Ala. 199. Therefore, though there was no issue of Whether the injury was committed wantonly, wilfully or intentionally the court couldnot have properly assumed that the plea of proximate contributory
Charge 2 predicated a finding by the jury for defendant upon a belief of the facts alleged in defendant’s plea of contributory negligence. As the evidence would have authorized the jury, if believed by them, to find that plaintiff’s injuries were directly attributable1 to the subsequent negligence of defendant’s servants, and not 1o hers as alleged in the plea, and that but for such subsequent negligence the injuries sustained by her would not have been inflicted; the charge was calculated to mislead the jury and was therefore, properly refused.
In other words, although the jury may have believed 'that she was negligent in stopping her vehicle on or in dangerous proximity to defendant’s track or that she negligently drove, or backed or allowed it to be backed on to or in dangerous proximity to the track of defendant, yet, if this negligence on her part Avas not the proximate cause of her injuries, but .the subsequent negligence of defendant’s servants was the direct cause, her negligent conduct was not a condition which would not defeat her right of recovery.
The charges given at the plaintiff’s request are in harmony with the law as declared in the .authorities above referred to. The judgment will be affirmed.
