Montgomery Street Railway Co. v. Hastings

McCLELLAN, C. J. No exception appears to have been reserved to ruling on defendant’s motion to strike certain averments of the complaint. The assignment of error based upon the overruling of the demurrers to the complaint is not supported by argument or citation of authorities in the brief, and, the complaint stating a cause of action, that ruling of the trial court need not be reviewed. We will say, however, that we are not impressed that any of the grounds of the demurrers were well taken. The 2d plea avers that the person in charge of the horse and -buggy was guilty of negligence which proximately contributed to the injury to them complained of, and then particularizes facts as constituting this alleged contributory negligence which in themselves do not constitute negligence at all. It can by no means be affirmed that to stop a buggy in a street off the track of a street railway with “the hind wheel thereof within a [446] few feet of the track,” the driver being in the buggy, is negligence on the driver’s part. This is the fact averred as the basis for the conclusion averred of contributory negligence. It does not support the conclusion. The plea in effect avers that this conduct on the part of the person in charge of the horse and buggy was negligence per sc, as matter of law. It was not, and the plea was properly held bad on demurrer. Similarly the 5th plea avers facts as contributory negligence on the part of the person in the buggy which do not import negligence. It cannot be said, as matter of law, to be negligence, contributing to an injury suffered in a collision with a street car, to drive a horse which is “afraid or skittish of the street car” on a narrow street, in which there is a railway track. The further averment in this plea as to the mudorman’s efforts to stop the car after the vehicle was actually on the track, were provable under the general issue. Plea 6 also fails to aver contributory negligence on the part of the driver ; and all it does aver material to the case was within the general issue presented by the plea of not guilty. The injury complained of was sustained in November, 1900. There was evidence tending to show that before and up to the time of the collision the horse was docile, not afraid of cars, etc., and also that after the collision it was of an ill disposition, very afraid of oars, difficult to drive near cars, given to backing and attempting to kick and run when approaching cars and when cars were approaching him, etc., etc. No cause for this change in the animal other than the collision in question was suggested in the evidence. The jurv had a right to find that the change was due to the collision. To afford them a basis for the assessment of damages referable to this impairment of the animal’s usefulness, it was entirely competent to show what the value was recently before and soon after the collision; the estimates faking its change of disposition into account. The condition of gentleness before, and the condition of wildness and viciousness afterwards were each and both in the nature of continuing conditions. Evidence of [447] the former condition a month or two before the collision and the value of the animal at the time was competent, especially in connection with evidence given by other witnesses that such condition continued up to the time of the collision; and so, too, evidence that it was wild two or three months after the collision and of the depreciation of its value at that time in consequence, was properly received, especially in view of other evidence, that this latter condition had existed ever since the collision. Indeed, the abstract facts that the condition of wildness and viciousness continued for several months and still obtained the following .spring, was of itself, pertinent to the inquiry of deterioration in its value, and witnesses were properly allowed to give their estimates of its value at that time, taking its then disposition into account, and also the fact of its continuation from the injury to that time. The objection to the witness Bolling testifying-' that the fact of a cut, -which had been described being in the horse’s side, injured its market value, proceeding on the ground that the witness was not an expert, was not well taken.- — Ward v. Reynolds, 32 Ala. 384; A. G. S. R. R. Co. v. Moody, 92 Ala. 279. The objection to the question, “What was the horse worth before it was injured?” propounded to the plaintiff, was hypercritical. ' To all ordinary apprehension, this called for an opinion as to the market value. The defendant was allowed to prove the cost of repairs to the buggy, and there was no dispute as to the amount of it. If the court erred in not allowing this proof to be made by the witness Hastings, the error could not have prejudiced the defendant. The witness Thomas, the motorman, having testified by way of stating it as a conclusion and otherwise that he had exercised every possible care to avoid the collision, it was competent for the purpose of laying a predicate for his impeachment to ask him if he had not told Mrs. Hastings, immediately after the collision, that it would not have happened if he had been more* careful. This statement, if made, was in conflict with his testimony on the trial, and proof of it went to his credibility. ” . [448] There was no question in the case as to the buggy becoming “second, handed” through and by reason of the injuries it received in the collision. It Aims not a new buggy at the time of the collision. The plaintiff had OAvned and used it for seAreral months, and it Avas a second-hand buggy when he bought it, i. e., it had already been used for sometime. The collision, therefore, had nothing to do Avith making it second-handed and its consequent depreciation in Amine. It was entirely impertinent, therefore, to ask the witness Geible the question : ' “Is it not true that when an article becomes second-handed it loses much?” and his answer: “It certainly does,” Avas not relevant to any issue in the case. IlaAdng in ArieAV the connection in AAdiich the question Aims asked, and it may be that it Aims intended to elicit evidence upon the inquiry whether an article AAdiich has been broken and repaired, is not less valuable than it was originally, but this is mere speculation as to AAdiat may have been intended by the question. On its face it imports no reference to a repaired article, and it seems clear that the witness understood it to have reference to the relative market value of such an article as a buggy Avhen new and unused, on the one hand, and after it had been used and become second-handed on the other. The testimony was inadmissible, and Ave are unable to affirm that its admission- did not prejudice the defendant. We find no error in the rulings of the court on defendant’s requests for instructions. ReArersed and remanded.