48 So. 119 | Ala. | 1908
The trial court erred in sustaining the demurrers to the defendant’s pleas 2 and 3 to the third count of tire complaint as amended. This count
Declarations or admissions of an agent as to the act then being done are admissible as a part of the res gesta1, but this does not apply as to admissions as to past transactions. — Tenn. Co. v. Kavenaugh, 98 Ala. 324, 9 South. 395; Chewning v. Ensley Ry. Co., 100 Ala. 493, 14 South. 362. The declarations made by the motorman were subsequent to the collision, were not part of the res gesta1, and should not have been admitted over the objection of the defendant. — M. & C. R. R. v. Womack, 84 Ala. 149, 4 South. 618.
Whether the defendant was entitled to the general charge or not, upon the theory that plaintiff did not make out a prima facie case, with the improperly admitted declarations of the agent in, we need not decide, as the case must be reversed upon other grounds. It is sufficient to say, as a guide upon the next trial, that in the absence of some proof tending to show that the car could have been stopped, after the discovery of the plaintiff’s peril, in time to avoid the collision, there was no wanton misconduct or subsequent negligence. Nor was there any simple antecedent negligence, unless the evidence tended to show that the motorman could have dis
The judgment of the law and equity court is reversed, and the cause is remanded.
Reversed and remanded.