136 Ala. 232 | Ala. | 1902
Tbis is an action brought by tbe plaintiff to recover damages for personal injuries received in a collision between tbe cars of tbe defendant company and a car of tbe Birmingham Bailway. & Electric Company, at an intersection or crossing of tbe tracks of tbe two companies in one of tbe public streets of tbe city of Birmingham. Tbe complaint contained five counts, all of which, except tbe second, charged simple negligence. The second count, as amended after demurrer sustained to it, charged wanton or intentional injury. Six pleas were filed by the defendant, tbe first plea being tbe general issue to all the counts; tbe second, third, fourth, and fifth pleas being pleas of contributory negligence, and were pleaded to each of tbe counts, except tbe second count. The sixth plea was a special plea to tbe second, setting up an assumption of risk on tbe part of tbe plaintiff. To tbis plea a demurrer was interposed by the plaintiff, and was sustained by tbe court, and tbis action of the court constitutes tbe first assignment of error.
The assumption of risk by one, no more than contributory negligence, can be set up as a defense to a count charging intentional injury and wrong. Tbis doctrine was plainly laid down by tbis court in the case of L. & N. R. Co. v. Orr, Admr., 121 Ala. 489. See also L. & N. R. Co. v. Markee, 103 Ala. 160. The court properly sustained tbe demurrer to this plea, under tbe principle stated in tbe two cases cited above.
At tbe time of tbe accident in which tbe injury com
Counsel for appellant do not deny, but on the other hand concede, that the defendant company is chargeable Avith simple negligence in the acts and conduct of Its employes in making the drop SAvitch in violation of the city ordinance, which prohibited it, but they contend that the plaintiff was also guilty of negligence, Avhich contributed proximately to his injury, in entering' upon or attempting to make the crossing without first stopping and knoAving that the way was clear before proceeding to cross, in obedience to the mandate of the statute. — § 3441 of the Code.
That the provisions of section 3441 of the Code, imposing certain duties upon railroad companies, whose tracks cross each other, at such crossings, are applicable
It is insisted that there was no evidence of intentional or wanton injury, and therefore the court erred in refusing the general charge requested by the defendant. The evidence of the plaintiff tended to show there was no brakeman or other person on the train of the nine loaded coal cars when the same were cut loose from the engine, to control them, and' without anyone to manage or control the same, these were suffered to run dawn grade at a speed of fifteen miles an hour across the tracks of the electric car line and across a public street of the city. That the conductor of the defendant company’s train, who cut the cars loose, was familiar with the crossing; “that they all knew that there were electric cars running out to Ensley and back over the crossing every few minutes in the day, and that cars were running over the same crossing from Birmingham to Avondale and back every few minutes during "the day, and that there were no interlocking crossings or derailing switches at the crossing; that there were no safety .appliances to prevent collisions at this crossing.” This phase of the evidence made it proper to submit the question of wantonness to the jury. For under it, if believed, Avhen taken in connection with the additional tendency, showing a willful violation of both the statute — § 3441 of' the Code — and the city ordinance above mentioned, the jury would have been authorized to infer from the
That portion of the oral charge of the court excepted to, by the defendant, and here insisted on as error, is nothing more than a statement of the law as laid down in R. & D. R. Co. v. Greenwood, 99 Ala. 515; Birmingham Min. R. R. Co. v. Jacobs, 101 Ala. 149; 13 So. Rep. 411. Moreover, we find in the record among the written charges given by the court, at the request of the defendant, a charge instructing the jury that the plaintiff was guilty of negligence in going on to the crossing before knowing the way to be clear. This was nothing more nor less than the general charge in favor of the defendant as to the defense of contributory negligence which was set up in answer to counts in simple negligence.
We find no reversible error in the record, and the judgment will be affirmed.