Birmingham Railway, Light & Power Co. v. Simpson

MAYFIELD, J. This action is one for personal injuries. While appellee was driving a spirited horse, the cart to which the animal was attached collided with one of appellant’s electric street cars, throwing appellee from the vehicle and injuring him. The plaintiff claimed that the horse became frightened and unmanageable; that while plaintiff was trying to control the horse it got upon defendant’s street car track; and that, on account of the negligence or wantonness of — 482 — defendant’s motor man, the cart in which plaintiff was riding was struck by defendant’s car, throwing plaintiff therefrom and injuring him. The accident occurred on one of the public streets or avenues of the City of Bessemer, Ala. The defendant claimed that, as plaintiff was driving-in a road near defendant’s car tracks, his horse became frightened at an engine on another and different railroad, and ran the cart into or against defendant’s car, thus causing the injury. The pleadings were so drawn as to raise these issues, together with that of contributory negligence, upon which the case was tried; and the trial resulted in verdict and judgment in favor of plaintiff in the sum of $2,500. The issues were therefore simple negligence, subsequent negligence, contributory negligence, and wantonness. Count 1 declared on simple negligence, count 3 on subsequent negligence, and counts 2 and 4 as for wantonness. Count 3 was charged out by the court, and of course appellant cannot complain of this. The phases of contributory negligence will therefore be treated as applicable to count 1 only. The first error assigned is the court’s action in sustaining a demurrer to plea 2. This plea, we think, was subject to'the demurrer interposed, but whether so or not it has, for all practical purposes, a duplicate in plea 3. They set up substantially the same defense'— contributory negligence — and the same evidence was admissible under each. If the defendant would have been entitled to a verdict under plea 2, he would equally have been entitled to it under plea 3.—Smith v. Davis, 150 Ala. 106, 43 South. 729; Creola Lumber Co. v. Mills, 149 Ala. 474, 42 South. 1019; Birmingham, etc., Co. v. Lee, 153 Ala. 84, 45 South. 292. — 483 — There was no reversible error in sustaining the objection to the question propounded to Dr. Waller as to his attempting to allay the fears of plaintiff touching the permanency of the injury he had received. It does not appear what the answer would have been, nor what was proposed to be proven. Moreover, it appears that the witness' did testify fully as to this matter, and did in effect answer the question fully.—Tolbert v. State, 87 Ala. 27, 6 South. 284; Ross v. State, 139 Ala. 144, 36 South. 718. There was no error in allowing the plaintiff to testify as to his experience in various kinds of work which he had followed. This was competent to show the plaintiff’s capacity to earn a living and make money before and after the injury, and therefore to show the extent of damages sustained, if such there were, through impairment on account of the injuries complained of. The plaintiff is not limited, in actions like this, where his earning capacity was diminished by the injury, to damages admeasured by the kind of work he was performing iwken injured, or by the particular amount of compensation he was receiving.—Ala. Steel & Wire Co. v. Griffin, 149 Ala. 438, 42 South. 1034; L. & N. R. Co. v. Orr, 91 Ala. 549, 8 South. 360; R. & D. R. Co. v. Hammond, 93 Ala. 181, 9 South. 577; Central Foundry Co. v. Bennett, 144 Ala. 184, 39 South. 574, 1 L. R. A. (N. S.) 1150, 113 Am. St. Rep. 32. There is therefore nothing in assignments 3, 4, 5, 6, and 7. There was no error in that part of the oral charge excepted to, which is made the basis of the eighth assignment of error. This part of the charge was not an attempt to define wanton negligence, nor to state all the elements thereof, nor the exceptions to the gen — 484 — eral rule. Certainly the defendant has no ground to complain. There is nothing in that part of the charge that is objectionable. It may be that a definition of wantonness should be fuller, and, if this had been intended to define the subject, it could have been improved upon; but we see no reversible error in it. It was liable to explanation, and was fully explained by the court; the subject being amply' defined by written charges requested by the defendant. This was proper to correct any misleading tendencies, and it affirmatively appears that, if any there were, they were so corrected. The objection was also too general and failed to sufficiently point out any specific defect. There is nothing in the ninth assignment of error. What was said with regard to the eighth assignment is applicable to this. This part of the charge excepted to was not an atempt to define simple negligence, but merely to point out a difference between it and wanton negligence and willful injury. There was no attempt in that part of the charge to define actionable negligence and that which is not actionable. If it was thought that this remark of the court could possibly mislead the jury (but we do not see how it could), explanatory charges should have been requested. When the court is speaking of negligence, it is not necessary every time the word is used, to distinguish between that which is actionable and that which is not, and, when it is speaking of a killing,, it is not necessary always to distinguish between killings that are felonies and those that are not. Any probable misleading tendencies can be and are corrected by explanatory charges. That part of the oral charge excepted to relating to punitive damages, made the basis of the tenth assign — 485 — ment of error, is probably subject to misleading tendencies, but it could and should have been corrected by explanatory charges. The law is not incorrectly stated. While the language used might be capable of misleading the jury, yet it had no such necessary tendency to mislead as would work a reversal. The defendant had no right to confine the court or the jury, by a mere charge, to any one theory or phase of the evidence, as was attempted by the eighth charge. Its refusal was therefore proper. Charges 11, 13, and 14, requested by the defendant, as applied to the pleadings and the proof, seem to us to be correct. Their refusal was error. The law upon this subject, and this particular phase of the subject, has been often and fully stated by the courts. These charges seem to us to have been intended to have the law upon the subject raised by the pleadings, applied to one phase of the evidence, strongly supported, the theory of which appears to be the true theory of the case. In the case of Schneider v. Mobile Light & Railroad Company, 146 Ala. 344, 40 South. 761, the law upon this subject, as applied to the particular issue raised by the pleadings, and the corresponding phase of the evidence, is thus stated by this court: “ ’The sum of the adjudicated cases bearing upon the relative rights of street cars and citizens traveling in vehicles drawn by horses or other animals is that both have a right to the use of the streets, but that neither has the exclusive right.’ The motorman of a street car is not necessarily obliged to stop his car when he sees a man driving in a vehicle along the line of railway ahead of the car, but he may continue to run the car in a proper manner until he is conscious of the fact that the driver is unaware or heedless of his danger. When he is thus conscious, it is his duty — 486 — to use all reasonable care and diligence to avoid running the car onto the vehicle. Seeing a man driving along the track, the motorman may assume that he will turn aside and out of the way of the car; but he cannot rest on the assumption so long as to allow his car to reach a point where it will be impossible for him to control his car or give warning in time to prevent injury to the man or vehicle. In other words, ‘if a person be seen on the track of a street railway, it may he assumed, if the person be an adult, that he will leave the track before the car reaches him, and this presumption may be indulged so long as danger does not become imminent, but no longer. From the time that danger is seen to be imminent, it becomes the duty of the motorman to use the highest degree of care to arrest it, and a failure to do so will constitute culpable negligence, which may or may not fix liability, as that question may be affected by contributory negligence.’ ”—See, also, Bush’s Case, 122 Ala. 471, 484, 26 South. 168. The undisputed evidence is that a proper lookout was kept by the motorman, and that the plaintiff was seen as soon as it was practicable. The plaintiff, himself, in effect so testifies. These charges, however, did not request a finding for defendant, nor did they attempt to state the law as to the duty to keep a lookout, or as to any other duty save that to stop the car, as. applied to the issues and the evidence of this case; and for this reason they appear to be correct and free from error. For the errors pointed out, the judgment must be reversed and the cause remanded. Reversed and remanded. All the Justices concur, except Dowdell, C. J., not sitting.