Summary
In Davies v. Barnes, 201 Ala. 120, 77 So. 612, 613, plaintiff was run against and injured by defendant's automobile at a point where a railroad crossed Twentieth street in the city of Birmingham. A witness was allowed to state the rate of speed at which the automobile was moving at a point a block and a half south of the crossing.
Summary of this case from Whittaker v. WalkerOpinion
6 Div. 427.
June 28, 1917. On Rehearing, December 20, 1917.
Appeal from Circuit Court, Jefferson County; E. C. Crow, Judge.
W. M. Walker and Allen, Bell Sadler, all of Birmingham, for appellant. Banks, Deedmeyer Birch, of Birmingham, for appellee.
While the fact that the automobile that injured plaintiff was running 25 miles an hour a block and a half south of the crossing does not generate any presumption of law, even prima facie, that it entered upon or passed over the crossing at a similar rate of speed, nevertheless it was clearly a fact for the jury to consider, as affording an inference of fact with respect to its probable speed and control when it very shortly thereafter reached and passed over the crossing. The point has been so ruled in Hilary v. St. Ry. Co., 104 Minn. 432, 116 N.W. 933, and Portsmouth St. R. R. Co. v. Reed, 102 Va. 662, 47 S.E. 850. If defendant's evidence afterwards introduced, rebutted such an inference, this did not invalidate the admission of the original fact.
Appellant's contention is that his plea of contributory negligence in short by consent was to each and every count of the complaint, and hence that he was entitled to the requested instruction upon the effect of plaintiff's contributory negligence as a bar to recovery upon the complaint as a whole.
Contributory negligence is no defense to wanton injury, and a plea of contributory negligence is not legally apt or responsive to a count for wanton injury. The minute entry does not affirmatively show that plaintiff consented that contributory negligence should be pleaded in short to the whole complaint, nor to each of the counts separately. We think the fair intendment of the recital is that the general issue and contributory negligence in short were pleaded to such counts of the complaint as they were severally appropriate and legally responsive to. To interpret plaintiff's consent as meaning anything more than this would produce a result as unjust as we think it was unintended; and, in the absence of an affirmative recital requiring that interpretation, we cannot so hold. In this view of the record, the trial judge properly refused the instruction in question.
If the jury believed the testimony of some of plaintiff's witnesses, including also defendant's statement that he warned his chauffeur when the car was 30 feet away from plaintiff, and could have been stopped in 4 feet, that plaintiff was going to get in front of the car they might well have found that the chauffeur was guilty of wanton negligence in running the car against plaintiff, who, according to many witnesses, was in plain view of the chauffeur, and discharging his duty to the public, while wholly unconscious of the approach of the car. The affirmative charge on the wanton injury count was therefore properly refused.
We find no error in the record, and the judgment will be affirmed.
Affirmed.
ANDERSON, C. J., and MAYFIELD and THOMAS, JJ., concur.
On Rehearing.
Since the foregoing opinion was written our attention has been called by appellee to the case of L. N. R. R. Co. v. Woods, 105 Ala. 561, 570, 17 So. 41, 45. It was there said:
"There was no error in receiving testimony as to the rate of speed of the train at Holmes' Gap, which was not more than a mile and a half from the place of the injury. The jury could very properly consider the rate of speed here, in determining the rate of speed at a place so near."
So far as the prima facie relevancy of the evidence in the instant case is concerned, we think the question is foreclosed by the decision in the Woods Case.
If subsequent developments in the course of the trial nullified this prima facie relevancy, which we need not determine, a motion should have been made for its exclusion, failing which the trial judge cannot be put in error for its original rightful admission.
We, of course, do not overlook the difference between a railroad train running on rails, and probably observing the obligations of a schedule time, and an automobile running on the highway at the will of its driver. There is a difference, but the difference is in the strength of the inference and its probative value, and not in the principle of relevancy and admissibility.
With respect to the distance at which previous speed is admissible for this purpose, there must indeed be some limit; but, as in all similar cases, this will depend upon the facts of each case, and must be left to the sound discretion of the trial court.
The application for rehearing will be overruled.
McCLELLAN, GARDNER, and THOMAS, JJ., concur. ANDERSON, C. J., and MAYFIELD and SAYRE, JJ., dissent.