Birmingham Ry. L. & P. Co. v. Livingston , 144 Ala. 313 ( 1905 )

ANDERSON, J.

The trial court properly overruled the demurrer to the amended complaint. — L. & N. R. R. Co. v. Marbury, 125 Ala. 237, 28 South. 428; C. of G. Ry. Co. v. Freeman, 134 Ala. 354, 32 South. 778; Armstrong v. Montgomery Street Railway Co., 123 Ala. 244, 26 South. 349; Russell v. Huntsville Ry. L. & Power Co., 137 Ala. 628, 34 South. 855.

The trial court did not err in overruling motion to- exclude the testimony of the plaintiff as a witness, “I ran to the door to jump out.” While the witness could not testify to uncommunicated motives, yet he could have testified what lie did at the time of the collision, as it ivas a part of the res gestae, and as a part of the evidence was admissible, the motion to exclude was properly overruled, as it did not single out the good from the bad.

The cause will not be reversed for the refusal of the trial court to give charge. “The plaintiff is not entitled to recover anything for the time lost from his employment.” The only element of damages proven for loss of time was what the defendant was earning, and the evidence showed that he ivas paid his wages during the time he was not working and the court charged the jury at the request of defendant, “The defendant is not entitled to recover anything for lost wages.” The last charge certainly cured all injury that could have arisen from the refusal of the charge as to lost time.

The evidence showed that a car of the defendant upon its track obstructed a train that plaintiff was on, by being on the crossing of the railroad track of the Alabama Great Southern Railroad, or sufficiently near thereto to be run into' by the train. It was defendant’s car and on its track, and the jury might well infer that it was taken there by the agents or servants of the defendant charged with handling or propelling it, especially when the defendant offered no evidence to negative these inferences. We cannot hold, however, as a matter of law that the only inference is that the car was put there or left there through the negligence of defendant’s agents or servante. It may have been left at a safe distance and then pushed too near the railroad track by some outsider. It is true the inference would be strong that.it was placed there by those charged with handling it, but such is not necessarily the only conclusion to lie drawn from the facts. In all cases where different inferences may be drawn by men equally sensible and impartial, the question must .be submitted to the jury. — State v. Houston, 83 Ala. 361, 3 South. 695.

Tbe trial judge erred in giving the general affirmative charge for the plaintiff, and the judgment of the city-court is reversed and the cause is remanded.

Reversed and remanded.

McClellan, C. J., Dowdell and Denson, JJ., concurring.