48 So. 93 | Ala. | 1908
The defendant’s (appellant’s) car line is constructed longitudinally on what is known as First avenue, a public street in the city of Birmingham. Defendant had the plaintiff, Avith others of its servants, employed in digging a ditch north of, and parallel AAdth, its tracks in said avenue, betAveen Twenty-First and Twenty-Second streets. At the noon hour of the day on which occurred the accident, the occasion of the in
The testimony, in respect to the distance from the rails to the ditch, variously placed same at from 3 to 5 feet, and aa>us also in conflict as to whether plaintiff Avas. walking within a safe distance from the track. That offered by the defendant tended to show that plaintiff Avas Avalking at a distance from the track safe from harm until the car dreAv quite near, AA'hen he staggered toward the car and AAdthin range of it; Avbile plaintiff testified that he never staggered, and was no nearer the track when struck than theretofore. The testimony for the defendant tended to sIioav that the car Avas going at not exceeding 4 miles an hour; that its rate of speed AA’as
The foregoing is a substantia] statement of the testimony in the case necessary, in our opinion, to a correct determination of the legal points presented by the assignment of errors. The only errors assigned relate to charges requested by the defendant and refused by the court.
The first of the refused charges is in this language: “If the jury believe the evidence they cannot find for the plaintiff under the first count of the complaint.” The first count counts for recovery on simple negligence, alleged in general terms. It is argued that this charge should have been given on either or both of two theories: First, that no negligence on the part of ” defendant’s motorman was shown; second, if negligence on the part
The duty of the company to recognize the rights of persons in the lawful use of the streets is imperative. As the company is held to a high degree of care, to a degree commensurate with the circumstances of each particular case, so likewise the citizen is held; for he cannot recklessly place himself in the Avay of danger and then complain of injury. ITe is bound, equally Avith the company, to the exercise of a proper degree of care, skill, and vigilance. He has no exclusive right to any particular portion of the street, and neither has the street railAvay company. The car has the right of Avay, in case of meeting or overtaking a. person on the track; but each party, in order to avoid accident, is hound to exercise ordinary care and such reasonable prudence anil precaution as the attending circumstances may require. These circumstances necessarily vary, in t-lieir relation to each other, in each particular case, and the conduct of the parties must be considered in the light of their surroundings at the particular time when they were called upon to act. What might be considered ordinary care in one case might, under the circumstances of another, amount to culpable negligence. The Supreme Court of the United States, in the case of Grand Trunk Railway Co. v. Ives, 144 U. S. 408, 12 Sup. Ct. 679, 36
Duty requires of a motorman, upon seeing a pedestrian on the track or dangerously near to it, to give warning of the car by sounding the gong or hell, or otherwise; and failure to give such warning may constitute negligence. — 27 Am, Eng. Ency. Law, 64, 65, and cases cited in note 1 to the text. We have seen that there is, in'
The second count of the complaint is predicated upon wanton or willful injury, and the affirmative charge, requested by defendant in proper form, in respect to this count, was refused by the court,' Wantonness “is the conscious failure of on^charged with a duty to exercise due care and dilligence to prevent an injury after the discovery of the peril, or under circumstances where he is charged with a knowledge of such peril, and being conscious of the inevitable or probable results of such failure.” — Birmingham, etc., Co. v. Pinckard, 124 Ala. 372, 26 South. 880. Without pursuing further the tendencies of the evidence, the court, after consideration of the evidence in its entirety, concurs with the trial court in the opinion that it was open to the jury to infer wantonness on the part of the motorman in the infliction of the injury, and consequently must hold that charge 3 was properly refused. — 3 Mayf. Digest, 712, § 36.
Charge 2, refused to defendant, is argumentative, misleading, and invasive of the province of the jury.
Charge 4 is invasive of the province of the jury, and is outside of the matters set up in the pleas of contributory negligence.
Charges 5 and 6 pretermit any inquiry as to wantonness, and were therefore properly refused.
No error being shown, the judgment of the city court is affirmed.
Affirmed.