Highland Avenue & Belt Railroad v. Sampson , 112 Ala. 425 ( 1895 )

HEAD, J.

The first count of the complaint is in case, and the subsequent counts introduced by way of amendment, being of the same nature, were properly allowed, and had relation to the time of the institution of the suit. The word “recklessly” employed in the original complaint, in qualifying the act of the defendant’s servants, means no more than * “negligently.” — Kansas City, Memphis & Birmingham Railroad Co. v. Crocker, 95 Ala. 412. But, if the servants had been charged with doing the act wantonly and willfully, or either, the action against the master would still have been case. So. Bell Tel. Co. v. Francis, 109 Ala. 224. The several acts of negligence stated in this count are alleged conjunctively, and on this account, if no other the demurrer was properly overruled. Each of the other counts stated a cause of action against the defendant, and was not demurrable .

The several objections to testimony of the witness Warner were properly overruled. The testimony elicited was relevant to the question of negligence on the part of defendant. The statement of plaintiff to which exception was reserved was rendered harmless. The city ordinance was properly admitted. Witness, Sage, was properly allowed to state how fast the train was running. Ala. Great Southern Railroad Co. v. Hall, 105 Ala. 599.

The defendant pleaded contributory negligence on the part of plaintiff’s driver. There was no pleading putting in issue willfulness or wantonness on the part of defendant’s servants ; so, that question is not presented. Louisville & Nashville Railroad Co.v. Markee, 103 Ala. 160. Therefore, if the pleas of contributory negligence were sustained by the evidence the defendant was entitled to a verdict. It is insisted by the defendant that those pleas were sustained by the undisputed evidence, and that it was entitled to the general charge requested. We have examined the testimony • and are of opinion that the question of contributory negligence was for the jury. — Highland Avenue & Belt Railroad Co. v. Sampson, 91 Ala. 560.

As we have said, there was involved in the issue joined, no question of wantonness or willfulness on the part of either party. Those elements were, therefore, immaterial and charges in reference to them abstract.

The 8th and 11th charges ignore the evidence tending to show negligence on the part of defendant’s servants, prior to the manifestation of the peril, and were properly refused.

Under the evidence, it was a question for the jury whether by pausing and listening, the driver of the wagon would have discovered the danger in time to avoid it. Charges 6 and 7 ignored this principle and were properly refused.

Charges 9 and 10 (construing, as we do, the word ‘recklessness” therein, to mean no more than “negligence”) hypothesize facts which, under many decisions of this court, constitute contributory negligence. Those charges ought to have been given.

The fourth charge ought to have been given.

Running the dummy locomotive backward at a greater rate of speed than that prescribed by the ordinance was a violation of the city ordinance, whether, in fact, it was or not safer to run backward than forward. Charge 17 was, therefore, properly refused.

The several general charges requested by the defendant were properly refused.

Reversed and remanded.