Birmingham Ry. Light & Power Co. v. Jones , 146 Ala. 277 ( 1906 )

HARALSON, J.

The first count was sufficient to charge simple negligence, the negligence complained, of relating to the management or control of the car.— L. & N. R. R. Co. v. Marbury Lumber Co., 125 Ala. 237, 28 South. 438, 50 L. R. A. 620; Bear Creek Mill Co. v. Parker, 134 Ala. 293, 32 South. 700; C. of G. R. R. Co. v. Freeman, 134 Ala. 354, 32 South. 778; M. & O. R. R. Co. v. George, 94 Ala. 216, 10 South. 145.

The second count properly charged wantonness or an intentional wrong. — Russell v. Huntsville R. R., 137 Ala. 627, 34 South. 855; C. of G. R. R. v. Foshee, 125 Ala. 199, 27 South. 1006.

Contributory negligence is no defense to a count charging wantonness and the intentional killing' of deceased, and the demurrers to said pleas setting up that defense, as to the second count, were properly sustained. — L. & N. R. R. Co. v. York, 128 Ala. 305, 30 South. 676; Highland Avenue & Belt R. R. v. Robbins, 124 Ala. 118, 27 South. 422, 82 Am. St. Rep. 153; L. & N. R. R. Co. v. Markee, 103 Ala. 160, 15 South. 511, 49 Am. St. Rep. 21.

Charge 1 for plaintiff stated an undisputed fact, and while the trial court would not-be reversed for refusing it, it was not reversible error to give it.

A child between 7 and 14 years of age is prima facie; incapable of exercising judgment and discretion, but evidence may be received to show capacity. There was no error in giving charge 2. — Pratt Coal Co. v. Brawley, 83 Ala. 371, 3 South. 555, 3 Am. St. Rep. 751 Government St. R. R. Co. v. Hanlon, 53 Ala. 70.

Charge 3, for the plaintiff, if not faulty in other respects, after hypothesizing the failure of the motorman to do all that a reasonably prudent and cautious motorman could and would have done under the circumstances to save the life of plaintiff’s intestate, fails to further hypothesize, that such failure itself proximate! y caused the injury, without which averment the: charge, was faulty, and its giving Avas error. — L. & N. R. R. Co. v. Anchors, 114 Ala. 492, 22 South. 279, 62 Am. St. Rep. 116.

Charge 4 requested by the plaintiff contains the averments lacking in the third charge, and this redeems it from error.

Charge 5 states a truism. The plaintiff made out her case if either count was proved. The defendant could have requested, a charge explanatory of the effect of contributory negligence upon the 1st count, if it deemed that important.

We have not been shown that there Avas reversible error in giving charge 9, requested by the plaintiff.

Charge 3, refused to the defendant, was misleading If not otherwise faulty. It ignores the duty of the moforman to keep a lookout for persons or obstructions on the 1 tack.

The fifth charge refpsed to the defendant was irgumemalive and gave undue prominence to one phase'of the evict tuce. — Ross v. Plate, 139'Ala.. 144, 36 South. 718. Besides, the charge given for defendant on top of page 10 of the transcript, which we have marked A, was in effect substantially the same as this refused, charge and equally as favorable to the defendant.

The judgment of the city court is reversed and the cause remanded.

Reversed and remanded.

Dowdell, Anderson, and Denson, JJ., concur.