Opinion
8 Div. 25.
May 15, 1919.
Appeal from Circuit Court, Morgan County; Robert Brickell, Judge.
W. A. Denson, of Birmingham, for appellant.
Eyster Eyster, of Albany, for appellee.
This is the second appeal in this case. See report of former appeal, 195 Ala. 422, 70 So. 749.
The second trial was had on practically the same issues and evidence as the first, and resulted in a verdict and judgment for the defendant.
The writer of this opinion was the writer of the opinion on the former appeal, but the majority of the court did not agree with the writer as to his conclusions on the former decision. The majority held that the liability of the defendant was a question for the jury, and not for the court, both as to wantonness and subsequent negligence. The writer and Justice Sayre held that no liability of the defendant was shown, either for wantonness or subsequent negligence; that is, that there was no evidence to show wantonness, and that the undisputed evidence showed that plaintiff was guilty of contributory negligence which was necessarily subsequent to any negligence on the part of defendant's agents or trainmen. The majority did not agree to either of these propositions, but held that the case should have been submitted to the jury on both issues. It could serve no good purpose for the writer to again urge his views of the law or evidence in this case, and therefore yields to the views of the majority.
It therefore results that the trial court erred in giving the affirmative charge requested by the defendant as to the wanton count. It should be said, however, in justification of this action of the trial court, that the opinion is not clear on the question as to whether or not there was error in giving a similar charge on the former trial.
If it was error to give the affirmative charge for defendant as to wantonness, then it was error to refuse plaintiff's written charge numbered 9. This charge was as follows:
"If the jury are reasonably satisfied from the evidence that the defendant's servants or agents consciously failed, after becoming aware of the peril of the plaintiff, to do all in their power with the means at hand to avoid injuring the plaintiff, and the plaintiff's injury was the proximate cause of such failure, then the servants or agents of the defendant would be guilty of wantonness, and the jury will find for the plaintiff, even though the jury should believe that plaintiff was himself guilty of contributory negligence which proximately helped to bring about his injury."
If the facts hypothesized in the charge were found to be true, this constituted wantonness under a long line of decisions. Jones' Case, 146 Ala. 284, 41 So. 129; Williams' Case, 140 Ala. 230, 37 So. 255.
Charges 3 and 4 were properly refused. If not positively erroneous, they were calculated to mislead the jury as applied to the issues and evidence in this case.
Charge 5 stated a correct proposition of law, and, the question of plaintiff's contributory negligence being one for the jury, its refusal was error. Hubbard's Case, 85 Ala. 179, 4 So. 607, 7 Am. St. Rep. 35.
Charge 6 was improperly refused on the ground that the court had given the affirmative charge for defendant as to the second count. If that charge had been properly refused, then charge 6 should also have been refused. Wantonness, however, being held question for the jury, charge 6 was correct, and should have been given.
Charge 7 was properly refused, as it ignored the issues under some of the counts. Charges 8 and 9 were also properly refused as argumentative and misleading.
It results that the judgment must be reversed, and the cause remanded.
Reversed and remanded.
ANDERSON, C. J., and SOMERVILLE and THOMAS, JJ., concur.