Birmingham Ry. Light & Power Co. v. Ryan

HARALSON, J. — The first count in the compliant is one averring simple negligence, and under our decisions it sufficiently avers the negligence of the defendant in killing the deceased, and was not subject to the demurrer interposed, — that the averment of negligence is a mere conclusion of the pleader, and fails to show what constituted the negligence complained of, or to set forth anv facts from which that negligence can be inferred.—Glass v. M. & C. R. R. Co., 94 Ala. 588, 10 South. 215; W. R. Co. v. Lazarus, 88 Ala. 456, 6 South. 877; Stanton v. L. & N. R. R. Co., 91 Ala. 384, 8 South. 798; Russell v. Huntsville, R. L. & P. Co., 137 Ala. 631, 34 South. 855. [76] Charge 1 for plaintiff was,, perhaps, misleading, but this, if trne, is not reversible error. It would have been better, for the court to charge the jury as to what were the duties of the motorman, when acting under the same circumstances that this one acted under, and leave it to them to determine whether the duty was not performed in a reasonably prudent and careful manner. These observations apply with equal force to charge 2, which, at most, was misleading. ■ Charge 3 for plaintiff asserts a correct proposition of law, and if it be .abstract, this would not operate to constitute reversible error. The fourth and fifth charges for plaintiff appear to be proper instructions. Wantonness overcomes contributory negligence, and a party may be guilty of wanton or wilful misconduct without having the actual intent to do the thing which causes the negligence.—Birmingham Ry. & Elec. Co. v. Pinckard, 124 Ala. 372, 26 South. 880. The sixth charge states a legal truism. As a matter of law, if one goes on the track of a railroad in close proximity to an approaching car without stopping, looking and listening, and is run over and killed by the car in the absence of an intervening cause, it must be presumed his conduct contributed to his death. Charge 7 was correct. It is not always the case that negligence in going on the track is the proximate cause of injury. There may be subsequent negligence of the defendant that is the proximate cause. Charges 1, 4, 5, 7, 9, 12, 13, 19, 24, 25 and 27, requested by the defendant, were properly refused. These charges all ignore the evidence tending to show wantonness of the defendant’s servant in running the car at a rapid rate of speed over a very populous crossing, without signals of approach. A. E. Denham, witness for plaintiff, testified: “Lots of people cross along there. More people cross there, Saturday night, I believe, than any time in the week. I suppose, that it is the most populous thoroughfare in Birmingham. I never heard the motorman right the bell before he struck Richwein. I never heard him ring at all. He did. not ring any gong. He ran the car over First avenue over 10 miles an hour.” There [77] was other evidence corroborating that of this witness. The evidence also tended to- show, that the motorman knew the character of the place and the frequency with which people were accustomed to pass.—Birmingham Ry..& Elec. Co. v. Jackson, 136 Ala. 280, 34 South. 994; Alabama G. S. R. Co. v. Guest, 136 Ala. 384, 34 South. 968, and Central of Georgia Ry. Co. v. Partridge, 136 Ala. 587, 34 South. 927. Charges 2, 8, 11, 14, 15 and 26, refused to defendant, were substantial duplicates of charge marked 4 on page 8 of transcript, and those marked 3 and 7 on page 9. Charge 3, if technically correct, tended to mislead, in that it ignores all reference to the evidence tending to show wantonuess or willfulness on the part of. the motorman. And the same thing is true of charge 6. If the jury might have found that the motorman was not guilty of simple negligence under the conditions hypothesized,yet, under the evidence, they might have found him guilty of wantonness or wilfulness. What has been said disposes of all the errors assigned, insisted on in argument. Affirmed. Weakley, C. J., and Dowdell and Simpson, JJ., concur.