Rеcitals in this record relating to demurrers to pleadings are not such as to constitute judgments disposing of the demurrers, and under the practice established by previous decisions the matters assigned for error based on such recitals cannot be reviewed. — Jasper Mer. Co. v. O’Rear,
Recovery is sought for injuries sustained by the plaintiff in being thrown from a bicycle by colliding with defendant’s engine on Eighteenth street in Birmingham. Eighteenth street runs nearly north and south, and along a distance of about 363 feet is crossed by numerous contiguous traсks belonging to defendant and another railroad company extending eastward and westward. The most southern of those tracks were used principally for freight trains, Where they crossed the street, a watchman was stationed who acted for both companies in warning street travelers of the approaсh of trains. Next to those tracks were others used for passenger trains which entered the station enclosure through gates extending along the east side of ¡the street. The gates were raised only to admit the passage of trains, and the person who acted for defendant in operating them was accustomed to
About nightfall, plaintiff with two companions riding bicycles approached the track — crossing from the south —and were signalled by the watchman at the freight tracks to proceed. The freight tracks were crossed with safety, but on a passenger track plaintiff Avas closely pressed to cross ahead of а train the approach of Avliich from the Avest had been obscured by standing cars. She quickened her pace to avoid the passenger train and on leaching the. switching track came in contact AAdth a SAA'itch engine AAdiicli aauis backing from the east.
Plaintiff testified in substance among other things that she Avas a little excited by seeing the passenger train so near, and that she had moved after crossing that passenger track about 20 or 25 feet over three or four tracks AAdiеn she AAnas struck by the SAvitch engine after the front Avheel of her bicycle had crossed one rail of the SAvitch track, and that she had no Avarning and kneAV nothing of the engine until a second before it struck lifer. Other evidence tends to shoiv that betAveen the track on which the passenger train ran and the place of 'the accident Avas 78 feet,, that the engine had headlights burning on both ends, that its bell Avas being rung, and that the plaintiff rode against the engine, striking it several feet from the front end.
No error Avas committed by the 'trial court in its rulings on objections to eAddence.
In support of averments of negligence it Avas proper to admit proof as to AVhаt tracks the AAmtchman was accustomed to attend, and as to Avhat opportunity street travelers had of knoAving the movements of trains oxmr the street.
Though the passenger train aaais not the immediate cause of the accident, its movements Avere of the res gestae; proper to be proven and considered as bearing on the question of contributory negligence,
A witness though, not an expert may from observation of a running train, testify as to its speed. — K.
Statement of Mrs. McPherson 'about plaintiffs physical condition were apparently of fact and not of opinion.
Opinion evidence of experts such as physicians may hе based upon the facts of which the witness has actual knowledge as well as upon abstract hypothesis. It is not a valid objection to a physician’s oрinion concerning cause and effect of disease and injury that it assumes the form of a conclusion. — 1 Green. Ev., § 440; Mobile Life Ins. Co. v. Walker,
Snitzer’s testimony concerning the rule of backing engines was not plaintly irrelevant, and, therefore, the court will not he placed in error for overruling the merely general objections thereto. — Rule of Court, 90 Ala.
Charges 1 and 3 requested by the plaintiff unduly restricted the jury in determining whether the plaintiff was guilty of 'contributory negligence, and should not have been given.
It is true that one сharged with the duty of giving warnings of the movements of trains may by others he presumed to know what trains are about to move, and that one about to cross the tracks mаy, when no danger is apparent to him, rely and act upon the invitation given him to cross without observing the usual cautionary requirements of stopping, looking and listеning. — L. & N. R. R. Co. v. Webb,
In сharge 11 requested by the defendant the pronoun “you” should be followed by the words “that the plaintiff,” or words of similar import in order to make it good. Outside, of the bill of еxceptions the same charge is set out in the transcript except that those words are inserted, but we have only to consider the bill of exceptiоns in determining which charge was refused.
Counts of the 'Complaint with reference to which the general affirmative charges were refused to defendant are each 'Supported by some evidence.
Chаrge 12 was calculated to mislead the jury in that the term “ordinary circumstances” might have been understood to include the giving of signals to cross tracks, which may in the absence of apparent danger, absolve a traveler whether on foot or on a bicycle from the duty of stopping, looking and listening for trains.
The refused charges not specially mentioned either ignore the effect of the invitation to cross or the principle which makes allowance for unduly еxcited and mistaken action in one who, by a defendant’s wrong, is subjected to danger of such sudden and imminent character as would ordinarily have induced such action.
For the errors in giving plaintiff’s charges 1 and 3 and in refusing defendant’s -charge 11, the judgment must be reversed and the cause remanded.
Reversed and remanded.