60 So. 309 | Ala. | 1912
-Action for damages resulting from the collision of a street car and the buggy in which plaintiff (appellant) was when injured. The complaint contained two counts; the first charging, in general terms, simple negligence, and the second, wanton or willful injury.
The report of the appeal will contain special pleas 3, 4, and 5, addressed to the first count which purported to set up contributory negligence. Plea 3 was subject to ground 4 of the demurrer. This plea is no stronger than its weakest alternative (Osborne v. Ala. S. & W. Co., 135 Ala. 571, 33 South. 687), viz., ”or negli
Pleas 4 and 5 were, for like reason, subject to the demurrer.
It is insisted for appellant that under Code, § 5476, the burden of proof to negative its negligence for the
After stating the correlative rights and duties of streets, it was said in part in Anniston El. Co. v. Rosen, 159 Ala. 195, 202, 203, 48 South. 798, 801 (133 Am. St. Rep. 32) : “The exercise of the common right, by each, must be such as not to unreasonably hinder or endanger either in the use of the street; and upon the operative of the street car rests, as of course, the duty to be diligent in keeping a lookout for persons using the street and to bring to the operation of the car, under such circumstances, such measure of care and prudence as the common rights enjoyed by the traveler and the street car suggest. This necessarily imposes upon the carrier the duty to operate its cars, in public streets, under such speed as that, if persons or property be upon or dangerously near the tracks of the street railway, the car may be, with skillful application of stopping appliances, stopped, and injury thereto averted.” The qualification of these duties is then set down.
Charles 1 and 7, given at the defendant’s instance, each pretermitted, in hypothesis, features of the rules of duty which we have quoted from Rosen’s Case, and which may have been found, on the evidence here, to have been breached with the proximately attending re-
For like reason charges 8 and- 21, given at defendant’s instance, should have been refused.
There was no error in excluding evidence of the populousness of the territory surrounding or beyond the scene in a public street of the injury.
The second count contained this averment: “Said motorman willfully, Avantonly, or- intentionally propelled said car against plaintiff’s vehicle when he knew that plaintiff would thereby be injured.” The evidence indicated ayos entirely immaterial under either count of the complaint. In eliciting testimony of what the motorman did, and Avhen he did it, in the effect to stop the car, it is at least preferable that the testimony be directed to his acts rather than to a conclusion based thereon or drawn therefrom.
Except as belOAV stated, all of the Justices concur in the opinion, from Avhich a reversal results. But the Chief Justice and Justice de Graffenried entertain
Reversed and remanded.