67 So. 283 | Ala. | 1914
1. The evidence in this case all shows that the plaintiff was ignorant of the approach of the automobile until the moment she received her injuries. She was on a highway — not in a town or city — driving a cow and calf. Her attention was directed to the cow and calf, and this the defendant knew, and he also knew that she was ignorant of his approach. He says that he sounded his horn, but he also says that he knew that she did not hear him. The defendant approached the plaintiff from the rear, and he shows by his testimony that when he first saw her she was 75 yards ahead of him, with her back to him, and that she continued walking along the road with her back to him until the moment of the injury.
Under the circumstances shown, the plaintiff owed the defendant no duty to look or listen for the approach of his automobile. — Adler v. Martin, supra; Terrill v. Walker, supra.
2. We are inclined to think from the size of the plaintiff’s verdict that the jury gave her nothing under the wanton (third) count. There were circumstances shown by some of the testimony, from which the jury, if they believed that testimony, had the right to infer that
Under all the evidence, the trial judge was not authorized to take the question of wantonness vel non from the jury. — Bates v. Harte, 124 Ala. 427, 26 South. 898, 82 Am. St. Rep. 186; 2 Mayf. Dig. p. 562, subd. 18.
The judgment of the court below is affirmed.
Affirmed.