43 So. 7 | Ala. | 1907
This was an action by the appellee (plaintiff) against the appellant (defendant) for damages resulting from a collision by the wagon and mules of the plaintiff with a moving train of the defendant in the city of Mobile; the gravamen of the complaint being that said mules became frightened at the moving-train, in plain view of those in charge of the train, and they failed to check or stop the train until the frightened mules backed the wagon against the train and thus caused the injury. The motion by the deferidant to exclude the evidenre of the plaintiff wás properly overruled. As said by this court, when this case was before it at a previous term: “The question, we think, under the evidence, was properly left by the court to the jury.” —L. & N. R. R. Co. v. Mertz, Ibach & Co., (Ala.) 40 South. 60, 62.
The court of its own motion charged the jury as follows : “If the jury aré reasonably satisfied that the defendant was negligent in the matter of stopping the train after they discovered the peril, then the plaintiff would be entitled to recover” — to which the defendant excepted, and the attorney for the plaintiff, calling the court’s attention to the fact that it had overlooked the pleas of the defendant in the casé, “the court then said to the jury that it -would amend that charge by adding that, 'of course, if they are reasonably satisfied of the truth of either one of the defendant’s pleas, not guilty, contributory negligence, why, of course, they could not
■The court also charged the jury that, “if the plaintiffs were entitled to recover, then they were entitled to recover the válue of whatever it cost to put the wagon in proper repair, to put it in the same condition as before.” This was erroneous. The measure of damages would he, not what it actually cost, hut -what it would reasonably cost to' put the property in such condition as it was before, or the difference in the value of the
The judgment of the court is reversed, and the cause remanded.