Birmingham, Ensley & B. R. R. v. Feast

PER CURIAM. (1) The third count of the complaint sufficiently showed a duty on the part of the defendant not to negligently injure the plaintiff and was not subject to the defendant’s demurrer. — B’ham R. R. Co. v. Fox, 174 Ala. 657, 56 South. 1013. (2) The first part of the oral charge excepted to by the defendant stated the general rule and was in practically the same language used by this court in the case, of Sheffield Co. v. Harris, 183 Ala. 357, 61 South. 88. Of course, that rule has its exception or qualification in cases in which the injured person comes so suddenly within the zone of danger that it would be impossible to check or stop the car which was not being operated at a negligent rate of speed; but, the oral charge being correct in the abstract, if it was misleading in the case at bar, or pretermitted the exception to the rule, it should have been explained or qualified by a requested charge. The defendant, however, got the full benefit of the exception to or qualification of the rule by a subsequent portion of the oral charge, as well as a written chai*ge [414] given for the defendant, which appears upon page 8 of the record, and which we number 11. (8) The second exception to the oral charge is without merit, as it correctly stated the law. — Sheffield v. Harris, supra (paragraph 4 of the opinion). (4) The charge made the basis of the third assignment of error,'which we designate as “Charge A,” and which will be found on page 82 of the record, was refused the defendant without error. If not otherwise bad, it was abstract and argumentative. (5) There was no error in refusing the defendant’s requested charge B, as the jury could well infer from the evidence that the use of the air or emergency brake may have stopped or contributed to the checking or stopping of the car more effectively than by merely reversing same. The undisputed evidence, whether given as a fact or as an opinion, did not show that the- reversal without the application of the brake was the best and quickest way to stop the car. The motorman did testify on the direct examination that the quickest way to stop the car was to reverse the lever, and which seems to be contrary to the opinion of experts, as well as results after frequent tests. — Harris v. N. C. & St. L. R. R. Co., 153 Ala. 139, 44 South. 962, 14 L. R. A. (N. S.) 261. But this witness did not qualify as an expert, and, later on, upon cross-examination so testified as to leave it open to the jury to find that the application of the brake would have aided in stopping the car quicker. Nor was the testimony of Ross such as to establish, without dispute, the fact that the application of the brake would not have tended to a quicker stopping of the car. (6) Charge C, refused the defendant, if not otherwise bad, was abstract, as there was no proof that the [415] fact that the child was allowed to play unattended was the sole proximate cause of the injury. The judgment of the circuit court is affirmed. Affirmed. Anderson, C. J., and McClellan, Sayre, and Gardner, JJ., concur.