92 So. 445 | Ala. | 1922
B. G. Jones sues George Plylar to recover damages suffered by him personally and for injuries to his automobile from a collision between their automobiles. There was judgment for plaintiff, and defendant appeals. There is no bill of exceptions. The appeal is on the record.
Demurrers were overruled to counts 1 and 3 as amended of the complaint, and these rulings are assigned as errors. These counts charge simple negligence.
Each count avers that defendant negligently ran his automobile into plaintiff's automobile, causing the injury, while plaintiff was operating his automobile in "a road or highway which was used and traveled over by the public and over which plaintiff and the public had the right to travel, in or near the town of Parrish." These counts aver that plaintiff had a right to travel where he was injured; that it was in a road or highway traveled over by the public, and where the plaintiff and the public had the right to travel. This is sufficient to show that plaintiff was not a trespasser at the time on the property of the defendant, and that a duty was owed him by the defendant to use due care not to injure him there. Ala. Fuel
Iron Co. v. Bush,
The court did not err in refusing the motion of the defendant to strike the following words from counts 1 and 2 of the complaint:
"That prior to and at the time said plaintiff's automobile had been and was used by plaintiff in the business of carrying passengers for hire," and "has been and will continue to be deprived of the use of his said automobile in his said business for a long period of time and thereby caused to lose much money."
It avers the automobile injured was being used by plaintiff in the business of carrying passengers for hire. In a case like this the measure of damages would be what would remunerate the plaintiff for the reasonable market value or reasonable cost of the material and labor made necessary by the injury to repair the automobile, and what would remunerate the plaintiff for the reasonable market value of the use or hire of the automobile during the time it was idle, reasonably necessary to make the repairs and fix it for running as it was before the injury. So. Ry. Co. v. Reeder,
Plaintiff by averments in the counts seeks to recover these elements of damages, and the motion to strike a part of them from the counts was properly refused. Moreover, this motion is not revisable, because the defendant can protect himself from improper damages by objecting to the evidence and by special written charges. Vandiver Co. v. Waller, Adm'r.,
Finding no error in the record, the case is affirmed.
Affirmed.
ANDERSON, C. J., and SAYRE and GARDNER, JJ., concur.