144 So. 9 | Ala. | 1932
The suit was for damages for wrongful death. The trial was had on count 3 for subsequent negligence and count AA charging "such servant, servants, agent or agents of the defendant wantonly, wilfully, intentionally and wrongfully caused the engine of said train or some part thereof to run upon, over or against plaintiff's intestate, and as a proximate consequence thereof she was killed." The pleas thereto were in short by consent.
The refusal of the general affirmative charge as to count AA is assigned as error.
The distinction between wanton misconduct as applied to negligence resulting in injury, and intentional wrong, is well stated by our decisions. Allison Coal Transfer Co. v. Davis,
The rule as to negligence, after discovery of peril, has been fully stated by this court; it is predicated on actual knowledge of peril, and failure to take due and available preventive action. Copeland v. Central of Georgia Ry. Co.,
On cross-examination, the witness stated: "I blew the whistle when she started toward the main line, about 90 feet from her. It is not a fact that I blew the whistle and struck her instantaneously. I don't suppose I blew over two or three times."
As opposed to this statement, there are adverse tendencies of evidence as to the fact that the whistle was not sounded before, but only at the time Mrs. Bates was struck by the engine, and that she was walking on the track and did not step over the right rail of the main line. We are of opinion that the facts warranted submission to the jury of controverted facts, and reasonable inferences therefrom, under count 3.
We are further of opinion that the affirmative charge requested by defendant as to count AA should have been given.
There was no error in refusing charge 22 for that the engineer may have kept a proper lookout and given proper signals, and yet the jury may have reasonably inferred that he made no effort to stop or reduce the speed of the train, so that he did not give timely signals. Conceding without deciding that the charge (charge 22) was proper (Saginaw Lime Lbr. Co. v. Hale,
It is unnecessary that we pass upon the rulings on the motion for a new trial, since the cause is to be reversed on the refusal of the affirmative charge as to count AA.
The foregoing will sufficiently guide as to another trial.
The judgment of the circuit court is reversed, and the cause is remanded.
Reversed and remanded.
ANDERSON, C. J., and BROWN and KNIGHT, JJ., concur.