North Alabama Traction Co. v. Thomas

51 So. 418 | Ala. | 1909

ANDERSON, J.

Whether the initials were or were not inserted before the name of “Thomas,” the next friend, in the caption of the bill of exceptions, after it was signed by the presiding judge, there was no material alteration of same. The bill of exceptions recited when signed: “I am 17 years of age. A. J. Thomas, my next friend in this suit, is my father.” (Plaintiff’s testimony in transcript, page 20.) The motion to strike the bill of exceptions is overruled.

Counsel for appellant insists that the fourth count of the complaint charges the defendant’s servants with wanton or willful misconduct, and that therefore the court erred in refusing the general charge as to said count. We concede the correctness of the contention that the fourth count does charge wanton or willful misconduct, but do not agree that there was no- proof in support of the charge, and think that the trial court properly submitted the question to the jury.

The plaintiff’s evidence showed that the horse was frightened and exhibited many signs that he was trying to run away, and the jury could well infer that the defendant’s servant in charge of the car, when sounding, the gong and causing the car to proceed, was conscious of the plaintiff’s peril, and that his acts and conduct were calculated to increase the same. Holmes, the motorman, admitted seeing the horse and buggy, but denied that the horse was showing signs of fright, or that he was .running away. It was for the jury, however, to determine whether or not the conditions were such as to indicate that the horse was frightened and unmanageable when Holmes saw him.

Counsel for appellant concedes that charge 2 given for the plaintiff, asserts the law, but insists that the giving of the same was error, because it. assumed that plaintiff had no control over the driver. The undisputed evidence showed that the plaintiff was merely riding in the buggy, upon the invitation of Glenn, the proprietor, and who had entire control of the horse and buggy, and that plaintiff had no control over the said Glenn.

. We need not determine whether or not there was error in giving charge 8, as the defect argued by counsel was cured by the verdict, which was for a sum greatly less than the amount claimed in the complaint. This charge, unlike the one in the case of Alley v. Daniel, 75 Ala. 403, set out the elements of damages, and, while it did not confine the damages to the amount claimed, the vérdict cured this omission; it being for less than the sum. claimed in the complaint.

The other insistences of error are very general, as counsel merely argues the subject and refers to charges covered by the proposition, leaving us to separate and designate such charges as to which the argument may be applicable. We will say, however, that the charges invoking the principle argued were properly refused. Whether it was the duty of the motorman to sound the gong at crossings, and whether it is or is not negligence when horses are frightened by said sounding, we need not decide as to cases where there was no knowledge of peril.» The facts in this case afford an1 inference that the plaintiff was in peril and that this fact was known to the motorman. If such was the case, it was not only the duty of the motorman to cease sounding the gong, hut to stop the car, if practicable, and use all precautions to allay the fright of the animal.

The trial court did not commit reversible error in refusing certain charges, requested by the defendant, exonerating it from liability on account of the negligence of Glenn, as these charges were, in effect, duplicated by given charges. See charge Y given for the defendant. - The judgment of the law and equity court is affirmed.

Affirmed.

McClellan, Mayfield, and Sayre, JJ., concur.