48 So. 114 | Ala. | 1908
According to the complaint this action is based upon negligence of the defendant subsequent to discovering the plaintiff’s intestate’s peril. As applied to the case in hand, the law may be stated thus:
The. motorman of a street car is not obliged to stop Ins car when he sees , a man walking along the line of railway ahead of the car, but may continue to run the car in a proper manner until he is counscious of the fact that the pedestrian is unaware or heedless of danger. When he is thus conscious, it is his duty to use all reasonable care and diligence to avoid running the car onto the man. Seeing a man walking along the track, the motorman may assume that he will turn gside and out of the way of the car; but he cannot rest on such assumption so long as to reach a point where it will be impossi
The car which caused the death of plaintiff’s intestate was being run along defendant’s car line, which is laid longitudinally in Tenth avenue, in the city of Birming
Howard Thomas, a witness for the defendant, testified that, he was a passenger on defendant’s car at the time plaintiff’s intestate was killed; that he was standing on
According to the principles of law heretofore annouuced, it was the duty of the motorman to do all in his power, with the means at. hand, to conserve the safety of the intestate, after discovering he was in peril and was unaware of the approach of the car. At what time the motorman discovered intestate’s peril, or realized that he was not aware of it, and whether, after discovering the danger of a catastrophe, he exercised the proper degree of care toward averting it, must, of course, be determined from the evidence. This determination is a question of law, and to be decided by the court, where the facts
Furthermore, the evidence shows that the car was equipped with a gong; and it cannot be disputed that the sounding of the gong is a means at the command of the motorman by which persons in dangerous proximity may he made aware of the approach of the car. It may he an all-sufficient means, and in the instant case it might have been sufficient to attract the attention of the intestate in time to admit of his extricating himself from his perilous situation. — A. G. S. R. R. Co. v. McWhorter, 156 Ala. 269, 47 South. 84. These were also questions for the determination of the jury.
We cannot affirm that the evidence is so clear of doubt and free from' inference adverse to the defendant as to make the case one for the determination of the court. We hold, therefore, that the court erred in giving the geheral affirmative charge in writing requested by the defendant.1
" ' When this cause was here on a former appeal, it was then determined, on the same evidence that is now presented, that witness Clayton was shown to possess that degree of experience and knowledge which would qualify him’ to' testify, as an expert, as to the distance within •which an electric car could be stopped, if running at the speed of the car in question, and that he could give his opinion on the subject. — Birmingham, etc., Co. v.
For the errors pointed out, the judgment of the city court is reversed, and the cause remanded.
Reversed and remanded.