139 Ala. 489 | Ala. | 1903
By this action plaintiff seeks to recover for personal injuries claimed to have been sustained through defendant’s negligent operation of a street car.
In the complaint it is alleged in substance, that on a street in Montgomery, a horse harnessed to a buggy in which plaintiff was sitting, backed the vehicle on or near to defendant’s railway in front of an approaching car which was in control of defendant’s motorman, and that “ while the motorman in charge of the car was a long-way from plaintiff, to-wit, more than one hundred feet, he observed or could have observed” her situation, and that he “negligently continued on his course with said car without stopping or checking said car, and ■ negligently came into collision with plaintiff’s said horse and buggy” whereby she was throAvn to the ground and injured. The complaint stated a cause of action grounded on simple negligence, and was not open to any objec
Pleas 2, 5, 8,10 and 11 each attribute to plaintiff conduct which may or may not have been negligent without averring that the same was negligent, except as a conclusion of law resulting necessarily from the acts or omission charged, so that proof of such acts or omissions would have sustained the pleas without regard to whether they were in fact negligent and without leaving that vital question to the jury who alone were competent to determine it. The demurrers to the pleas respectively were properly sustained. — Montgomery St. Railway v. Hastings, 138 Ala. 432.
Pleas 7 and 9 were each bad in that they do not Avith certainty impute to the plaintiff the omission of any duty or the commission of any act negligent or other*wise.
Crying is often symtomatic of pain, and in connection Avith the other evidence of actual hurts received by plaintiff, the fact that she cried all the afternoon of the accident, AAras admissible in evidence as of the res gestae of the injury, as was also the fact that she complained of pain the next morning. — Birmingham Ry. & Electric Co. v. Hale, 90 Ala. 8. There was no error in alloAving the plaintiff, when testifying as to the speed of the car, to say “it looked very fast to me.” This expression was but a statement indicative of the speed as it appeared to her and not a statement of her opinion. — Birmingham By. & Elec. Co. v. Franscomb, 124 Ala. 621.
Whether the motorman was guilty of negligence proximately causing the injury, as Avell as Avhether the plaintiff was chargeable with such negligence, Avere questions Avhich under the evidence Avere proper for the jury’s determination, and charges 1 and 2 Avould have withdrawn these questions from the jury. Charges 4 and 5 each improperly purport to hinge the motorman’s duty in respect of stopping the car, upon his certain knowledge that his failure to stop would result in a collision Avith the buggy. Charges 6, 7, 8, 12, 17, 21, 22, 23, 24 and 25, each upon the facts hypothesized improperly assumes either that defendant was not chargeable with negligence, or that plaintiff was guilty of contributory
Affirmed.