141 Ala. 606 | Ala. | 1904
The averments of negligence in the counts of the complaint are sufficient. — Louisville & Nashville R. R. Co., v. Marbury Lumber Co., 125 Ala. 237.
The counts aver that defendant negligently set fire to and burned the house in which plaintiff resided with his father and mother and other members of the family; that he was in the house when it was ignited, and was burned while escaping from it during the progress of the fire and by the fire which was burning the house. It thus sufficiently appeal's that defendant’s negligence was the proximate cause of plaintiff’s injuries. — Rajnowski v. Detroit, Bay City & A. R. R. Co., 74 Mich. 20; S. C. 78 Mich. 681.
It was not necessary for the complaint to negative contributory negligence on the part of the plaintiff; such negligence is defensive matter. The evidence, moreover, showed that plaintiff at the time of being injured ivas only five years of age, so that the issue of contributory negligence could not be made in the case.
The testimony of Mrs. Sarah McDonald to the effect that the sparks emitted that night by defendant’s engine were unusual in quantity and size; that they were large and attracted her attention and that she had never seen “it throw out fire that way before,” was properly received. Sherrill v. Louisville & Nashville Railroad Co., (M. S.) 37 South.
The fact that the plaintiff, an infant of the tender years above stated, was at first taken safely out of a room of the burning house and left in his night clothes on the burning veranda, and, the night being very cold, went back into the room and there received the injuries be complains of, did not break the chain of causation between defendant’s negligence and such injuries. No fault is imputable to him for being left on the veranda, that he was there peculiarly exposed to the cold — the house then burning on the inside — was a natural consequence of the house being on fire, and that he went back into the room under the circumstances was a natural sequence. The 5th and 6th charges requested by defnd-ant were, therefore, properly refused.
The law undertakes by the oath administered to jurors to bind their consciences to return verdicts according to the conviction of their mvnds. Evidence is addressed to their minds and not to th eir consciences; and it would tend to their confusion to give prominence to the givings out of their conscience to the exclusion or subordination of their mental faculties as the court was asked to do by charge 4.
Nothing need be said in support of the court’s refusal to give the general affirmative charge and the affirmative charge on count 1 requested by defendant.
It is strongly insisted that the court erred in refusing to give the affirmative charge requested by defendant on count 2. The count charges that plaintiff’s injuries ■were caused “by reason of the negligence of the defendant in this, that the defendant negligently selected said engine; that the defendant negligently maintained said
We are by no means convinced that the City court erred in overruling the motion for a new trial.
Affirmed.