
    Montgomery Street Railway v. Rice.
    
      Action for Injury to Mule.
    
    1. Damages; wantonness or wilfulness. — In an action for damages charging defendant with wanton or wilful wrong, the question of wantonness or wilfulness vel non is properly left to the jury.
    2 Charge to jury; error to single out particular facts. — It is error in a charge to the jury to give undue prominence to particular facts upon which the defendant hypothesizes a particular phase of his defense.
    3. Same; rate of speed; when question for jury. — In an action against a street railway company to recover damages for injury to a mule, alleged in the complaint to have been caused by the willful or wanton negligence of the defendant, where the evidence shows that the accident occurred at the intersection of two streets where the mule could not have been seen by the motorman until the car had reached the crossing, the question as to whether running the car at the rate of 5, 6 o\- 7 miles an hour at such place was wilful or wanton negligence, is a question for the jury.
    
      4. Wilful or toanlon injury; what constitutes. — The rule of law as to wanton or wilful injury, is correctly set forth, in the charge, “The court charges the jury that before a party can be said to be guilty of wilful, or wanton conduct; it must be shown that the person charged therewith was conscious from his knowledge of existing conditions that injury would likely or probably result from his conduct, and that with reckless indifference to consequences he consciously and intentionally did some wrongful act, or omitted some known duty which produced the injury.
    Appeal from the City Court of Montgomery.
    Tried before the Hon. A. 1). Sayre.
    This action was tried on the 3d count of the complaint charging the defendant with wilfully .or wantonly injuring a mule, the property of plaintiff, to which count the defendant interposed the plea of “not guilty.” There was a verdict for the plaintiff.
    The evidence showed that defendant was engaged in the business of operating an electric street railway in the city of Montgomery. That one of defendant’s lines ran along Chandler street, and that the track was straight for several hundred yards on either side of the intersection of Chandler and Procter streets. That plaintiff’s mule hitched with another mule was being driven in a walk along Procter street, and was struck at the intersection of Chandler street and Procter street by one of defendant’s cars, and badly injured. The evidence for the plaintiff showed that the wagon to which the mule was hitched was loaded with sand; that no view of Chandler street could be had until the car track was reached on account of'intervening buildings; that the mule was struck as it got upon the track and simultaneously with the driver’s first sight of the car. The plaintiff introduced witnesses who testified that the car was going “very fast,” “as fast as it could go,” “about fifteen miles an hour.” The defendant’s witnesses testified that the car was going six or seven miles an hour. There was conflict in the testimony as to whether or not the motorman rang the bell on approaching the crossing. The motorman testified to applying brakes as soon as he saw the peril. The defendant asked and the court refused the following written charges: 1. “The court charges the jury that if they believe the evidence in this case they Avill find a verdict for the defendant.” 2. “The court charges the jury that if they believe the evidence in this case, they should not find a verdict under the 3d count of this complaint.” 3. “The court charges the jury that there is no evidence in this case of any Avilful or Avanton conduct on the part of the defendant, or its agents or servants, or employees in charge of the car, which collided Avith plaintiff’s mule.” 4. “The motorman had the right to assume, on approaching Procter street, that travellers on foot or in vehicles Avould look and listen for approaching cars before attempting to cross the track, and this fact you may look to in determining whether or not the motorman was guilty of Avilful or Avanton wrong.” 5. “The court charges the jury that if you believe from the evidence that the car was not being run faster than five or six miles an hour, and that after the motorman discovered the peril of the mule he put on the brakes and tried to stop the car but was unable to do so before the injury happened, then there can be no recovery in this case.” 6. “If you believe from the evidence that the car Avas being run at the rate of five or six miles an hour, then this would not warrant a verdict against the defendant for Avilful or wanton wrong.” 7. “The court charges the jury that before a party can bo said to be guilty óf Avilful or Avanton conduct, it must be shown that the person charged therewith was conscious- of his conduct, and conscious from his knoAvledge of existing conditions that injury would likely or probably result from his conduct, and that with reckless indifference to consequences, he consciously and intentionally did some Avrongful act, or omitted some known duty which produced the injury.” The defendant severally excepted to the refusal by the court of the foregoing-charges, and the action of the court in this respect is assigned as error.
    Steiner, Crum & Weil, for appellant.
    Hill, Hill & Whiting, contra.
    
   ANDERSON, J.

The trial court charged out all of the counts of the complaint except number 3, which charges a willful or wanton act.

Under the evidence, although there ivas a conflict as to the rate of speed the car was going, and as to the motorman’s knowledge of the surroundings, the trial court properly left it to> the jury to determine, whether or not defendant ivas guilty of a wanton or willful wrong. M. & C. R. R. v. Martin, 117 Ala. 367; L. & N. R. R. Co. v. Webb, 97 Ala. 314.

Charge 4 was properly refused. It singles out a fact upon which it is hypothesized, and seeks to direct special attention to the evidence, tending to show that phase of the defense, and give it undue prominence. We have heretofore observed, more than once, that charges of this character, assuming that the jury may look to this fact or may consider that fact, or are unauthorized to infer certain fcrmulative conclusions from the evidence, and especially from specific parts of it, are bad.- — E. T. V. & G. R. R. v. Thompson, 94 Ala. 636; Snyder v. Burke, 84 Ala. 53; Hawes v. State, 88 Ala. 37; Salin v. State, 89 Ala. 56.

Charges 5 and 6 are bad and were properly overruled. We cannot as a matter of law, say that the defendant was not guilty, if the car ivas not going faster than 5, 6 or 7 miles an hour at such a crossing as is described by the evidence. It was a question for the jury; besides the charges do not attempt to fix the speed of the car at the time of the injury. The car may have been running at the rate of 5, 6 or 7 miles an hour, during the day, yet may have been running much faster when the injury was inflicted.

The 8th charge has often received the condemnation of this court. It is argumentative and also calls upon the trial court, to declare to the jury, that there is no evidence of a particular fact. — Jefferson v. State, 110 Ala. 89.

Charges 7 asserts the law, and for its refusal, the judgment of the court must be reversed.- — L. & N. R. R. Co. v. Orr, 121 Ala. 489; M & C. R. R. v. Martin, supra.

Reversed and remanded.

McClellan, O. J., Tyson and Simpson, J.J., concurring.  