Bice v. Steverson

ANDERSON, C. J. This is the second appeal in this case. Bice v. Steverson, 205 Ala. 576, 88 South. 753. We there held that the defendant’s -special plea 16, of contributory negligence, was not subject to the grounds of demurrer, that the negligence there set up was a mere conclusion. We adhere to the former ruling. The plea, however, was not a good answer to the wanton counts, and was subject to the plaintiff’s twenty-third groundi of demurrer, but accurate pleading would suggest that the demurrer should have specified or designated the wanton counts. Especially is this true when the complaint contained as many counts as the present one, and as most of them were for simple negligence. It is suggested by appellee’s counsel that the failure to sustain the demurrer to this plea was without injury, as the defendant was entitled to the general charge as to the wanton counts. It is unnecessary for us to resort to this point to save a reversal of this case, as it must be reversed for other reasons. It is sufficient to suggest, however, as a guide upon the next trial, that the record fails to disclose evidence of wantonness on the part of Baker, even if it could- be conceded that he ordered the plaintiff to go upon the car and set the brake, but, as held in the former opinion, it was a question for the jury as to whether or not he was guilty of simple negligence. The trial court erred in giving, at the request of the defendant, charge which we number 2. If not otherwise faulty, it exacts too high a degree of proof on the part of the plaintiff by use of the words “doubt and uncertainty.” In the case of A. G. S. R. R. v. Robinson, 183 Ala. 265, 62 South. 813, we dealt with this character of charges and held that when they used these words, one or both, that they should not only be refused, but the giving of same would be reversible error. See, also, Monte v. Narramore, 201 Ala. 200, 77 South. 726. Nor do we think that the latter part of said charge cured or neutralized the erroneous portion of same. There was no error in giving the defendant’s charge 15. *105 Charge which we number 15% seems to be involved and incomplete, though error cannot be predicated upon the giving of same as it thus appears. The trial court committed no reversible error in the rulings upon the evidence, and a discussion of same in detail can serve no good purpose. The judgment of the circuit court is reversed, and the cause is remanded. SOMERYI.LLE, THOMAS, and BOULDIN, JJ., concur.