
    Birmingham Ry. Light & Power Co., v. Jones.
    
      A ction for Damages for Death of a Child.
    
    (Decided April 28th, 1906.
    41 So. Rep. 146.)
    1. Street Railroads; Injuries to Persons on Track; Complaint; Allegation of Negligence. — In an action for damages for the death of a child caused by being’ struck by a car, a complaint which alleges that the car ran against the child, and that hej died by reason of and as a proximate consequence of the negligence of the company in nr about the management of the car, states a good cause of action in simple negligence.
    2. Same; Wantonness. — A complaint which alleges that the company ' wantonly caused or allowed the car to run against a child, and thereby wantonly and intentionally caused the death of the child sufficiently states a cause of action for intentional wrong.
    3. Negligence; Contributory Negligence; Wantonness; Defenses.— Contributory negligence is no defense to a charge of wanton or intentional wrong.
    4. Trial; Instruction; Assumption of Facts Undisputed. — It is not reversible error to assume 'in a charge, facts that are not disputed.
    5. Negligence; Contributory Negligence; Infants. — A child between the age of 7 and 14 years is prima facie incapable of exercising judgment and discretion so as to be guilty of contributory negligence, but capacity may be shown by proof.
    6. Street Railroads; Injury to Persons on Track; Instructions. — A charge which fails to hypothesize that the proximate cause of the injury was the failure of the motorman to do all that a reasonably prudent motorman would have done under the circumstances to save the life of the child, was bad, and its giving error.
    7. Negligence; Contributory Negligence; Infants. — Capacity on the part of a child under 14 years of age to know danger is not of itself sufficient to render him guilty of contributory negligence in doing a thing which would be negligence in an older peí son.
    8. Trial; Instructions; Ignoring Facts. — A charge ignoring the duty of the motorman to keep a proper lookout for persons on the track is bad and properly refused.
    
      Appeal from Birxning-luun City Court.
    Heard before IIon. Chas. A. Senn.
    This was an action by Bettie Jones, administratrix against appellant for damages resulting from the death of a child nine years old. The child was killed by a street car operated by appellant while crossing appellant’s track. The issues made by the complaint and pleas and as-presented by the charges, are as folhyws:
    Count 1: “Plaintiff claims of the defendant $20,000 damages, for that on the 23d day of July, defendant Avas operating a certain car by means of electricity upon a raÜAvay in Birmingham, Ala.,; that when said car was at a point upon said railway AA'here same Avas on grade, with a certain street, to-Avit, TAventy-Second street, at its interesection with Avenue 1), in said city, said car ran upon or against plaintiff’s intestate, Harry Lee Jones, Avho was under 14 years of age, to-Avit, of 9 years of age, and so injured him that he died. Plaintiff alleges that said car ran upon or against her said intestate, and that he ulied as aforesaid, hv reason of and as a proximate consequence of the negligence of the defendant in or about the management of said car.” Count 2: “Plaintiff refers to and adopts all the Avords and figures of the first count, from the- beginning thereof to and including the Avords 'that he died,’ Avhere they first occur together in said count. Plaintiff adds 1 hereto the following Avords of averment: Defendant, through its agents upon said car, Avantonly or intentionally caused or alloAved said car to run upon or against said intestate as aforesaid, and thereby wantonly or intentionally caused the death of plaintiff’s said intestate as aforesaid. The defendant interposed several grounds of demurrers to the.se counts, AA-hich Avere overruled, AAdieieupon the defendant interposed pleas of the general issue and several pleas of contributory negligence, in that he was negligent in the Avay in which he Avent upon and conducted himself Avliile on the track of the defendant, and that he negligently went upon and remained on the street railway track of the' defendant without, stopping or looking or listening for approaching cars upon such track, and that he negligently went upon or remained upon defendant’s street railway track in front of an approaching car on said track.”
    Demurrers were sustained to the pleas of contributory negligence as answer to the second count of the complaint. The evidence for the plaintiff tended to show that the plaintiff’s intestate Avas killed by a car on defendant’s raihvay at or near the crossing of Twenty-Second street and Avenue B, in the city of Birmingham, on the date mentioned in the complaint. It further tended to show that he crossed the track about 125 feet in front of the car, Avalking pretty fast; that after crossing the track his.hat bh-AV off and fell right in the middle of the car line. Tie turned .hack to get it, and while stooping down to pick it up the car struck him; that wlifen he stooped doAvn to pick up the hat the car Avas then about 10 feet from him: Evidence also tended to show that no AAdiistle Avas bhnvn and the gong Avas not rung before it struck him. It is further shown that the car was going at a speed indicating no intention on the part of the motorman to stop it. The evidence for the defendant tended to show that at the time the hoy Avas struck tlie hell on the car Avas being rung fast and loud; that the boy came out of an alley diagonally across the track; that the boy Avas running, and looked back to see hoAV far the car Avas, and as the car Avas getting pretty close to AA'here he Avas the boy increased 1ns speed, as if to try to get across the track before the car got there; that the motorman Ava-s ringing the bell and holding onto his brake pretty tightly; that the car Avas 2 or 2 1-2 feet from the.boy when he got on the track; and that the car ran about 35 or 40 feet after it struck him.
    The plaintiff' requested the folhwing charges, Avhich were given: Charge 1: “Under the undisputed evidence in this case, if the jury believe it, plaintiff’s intestate Avas under 11 years of age.” Charge 2: “A boy under 14 years of age is prima facie presumed to be too young to be held responsible for lack of care and diligence: for his own safety.” Charge 3: “Even if the jury should be satisfied from the evidence that plaintiff’s intestate was guilty of contributory negligence in subjecting himself to danger of being run upon by the car, yet if the jury are further reasonably satisfied from the evidence that, after the motorman became aware of the danger of plaintiff’s intestate, he failed to do all that a reasonably prudent and cautious motorman could and would have done under the same circumstances to save the life of plaintifffs intestate, .then such contributory negligence of plaintiff’s intestate is not the proximate cause of his death, and the jury cannot find for the defendant under its plea of contributory negligence.” Charge 4: “If the jury are reasonably satisfied from the evidence that the defendant’s motorman in charge of the car consciously failed, after he became aware of the peril' of plaintiff’s intestate, to do all in his power with the means at hand known to him to save the life of plaintiff’s intestate, and that the death of plaintiff’s intestate was the proximate cause of such failure, as charged in the second count of the complaint, then the motorman would be guilty of wantonness, and the jury will find for the plaintiff, even though the jury should believe that plaintiff’s intestate was himself guilty of contributory negligence which proximately helped to bring about his death.” Charge 5: “In this cause it is not necessary for plaintiff to prove her case beyond a reasonable doubt, but plaintiff’s case is made out if the jury are reasonably satisfied from the evidence that either the first or second count of plaintiff’s complaint is true.” Charge 9 : “Mere capacity to know danger, though it exists in a boy under 14 years old, is not necessarily sufficient to make him guilty of contributory negligence in doing a thing which would be negligence in one of mature age.”
    The defendant requested the following charges which were refused: Charge 3 : “If from all the evidence you believe that the motorman did everything that could have been done to prevent the car from running over the boy, you must render your verdict in favor of the defendant.” Charge 5: “If you believe from the evidence that the motorman saw the boy running in a diagonal direction towards the track, that when he saw the boy running towards the track the motorman sounded his gong repeatedly to warn the boy of the approach of the car, that when the boy was 8 or 10 fyet from the track and the car was 8 or 10 feet from the boy he looked towards the car and immediately increased his efforts to get across the track in front of the car, that as soon as the motorman saw the boy running, towards the track he put the brake on and reduced the .speed of the car from 7 or 8 miles an hour to 4 or 5 miles an hour, that when the boy looked towards the car the speed of the car had been reduced to 4 or 5 miles an hour, and as soon as the'motorman saw that the boy was going upon the track in front of the car the motorman reversed the car and did all he could to stop the car and prevent- striking the boy, you must fiud your verdict for the defendant.
    There was a verdict and judgment for plaintiff for $5,000.
    Tillman, - Grub, Bradley & Morrow, for appellant.
    The first count is subect to the demurrer assigned, because it is too vague and uncertain in its averments of negligence. The second count tends to charge wanton or intentional negligence. The averments are sufficient to charge an intentional act, but are not sufficient in averments of wantonness.
    The second count not properly averring wantonness, the defendant’s pleas of contributory negligence were good answers to that count and the defendant’s demurrers should have been overruled. Charge 1 given for plaintiff invades the province of the jury. Charge 2 should not have been given. — L. cG jV. R. R. Co. v. Mcurbury Lumber Co., 125 Ala, 235; L. cG N. v. Reese, 85 Ala. 502; Western v. Harivell, 97 Ala. 348. The court erred in giving charge 3 for plaintiff. Charge 4 was likewise erroneous. — L. & X. R. R. Go, v. Marker, 103 Ala. 171. The fifth and ninth charges were improperly given.— Worthington v. Goforth, 124 Ala. 656. The charges requested by the defendant and refused by the court, correctly state the law and should have been given.
    Bowman, Harsh & Bebdow, for appellee.
    Defendant’s demurrers to the first count were properly overruled. It is the duty of those operating street cars to lookout for and take precautions to prevent inury to those using streets. — Elliott on Streets and Roads, § 767, p. 827; Nellis Sur. St. R. R., p. 292, with many citations; Lanfer v. Bridgeport Trac. Go., 37 L. R. A. 533; Migy. St. R. R. Go. v. Shanks, 37 Sou. 166, (Ala.) ; F. E. Sample v. Gon. Light & Ry. Go\, 57 L. R. A. 1.86; Thompson on Neg. 2 Vol., §§ 1382-1384. ■ '
    By analogy to Alabama code forms allegations of negligence are allowed to be very general. — L. & N. R. R. Go. v. Jones, 83 Ala. 376; Armstrong, Axlmr. v. Mtgy. St. Rif. Go,, 123 Ala. 244; G. of G. Ry. v. Freeman, Í3-1 Ala. 354; Bear Greek Mill Go. v. Parker, 134 Ala. 293: L. & X. R. R, Go. v. Marburg Lum. Go,, 125 Ala. 237.
    Dnnurrers to the second count were properly overruled. Plaintiff’s second count as amended properly charges wantonness or intentional wrong. — L. & X. R. R. Co, v. Orr, 121 Ala. 489; Russell v. Huntsville Raj. L. d P. Go., 137 Ala. 627; G. of G. Ry. Go. v. Foshce,\ 125 Ala. 199;.Haley v. K. G. M. d B. R. Go., 113 Ala. 651; M. d G. R. R. Go. v. Martin, Admr., 117 Ala. 381.
    Plaintiff’s demurrers to pleas of contributory negligence to second count were properly sustained. Contributorv negligence is no answer to wantonness.— L. d N. R. R. Go, v. Watson, 90 Ala. 68; L. d X. R. R. Go. v. Orr, Admr., 1.21 Ala. 499; L. d X. R. R, Go. v. Mark.ee, Admr., 103 Ala. 160.
    Charge number one states the undisputed evidence. The only witness actually testifying to the age of the boy was the mother, who puts the age at nine years.
    Charge number two is but a statement of a legal proposition laid down by this as well as other courts. — Pratt Coal & Iron Co. v. Braiiley, 83 Ala. 374; Jefferson, pro ami r. B. It. <£• 74. Co., 116 Ala. 299; Lovell v. DeBardeleben Coal & Iron Co., 90 Ala. 13.
    The authorities cited below are clear authority for giving this charge: McGee, ct al v. Willis Aclmr., 131 Ala. 292; 71/.. & C. R. R. Co. v. Martin, 30 Sou. Rep. 830 ; C. of G. Ry. Go. v. Lamb. 124 Ala. 172; O. of G. Rij. Co. v. Foshee, 125 Ala. 199; L. cG N. R, R, Co. v. Brown, 121 Ala. 222.'
    This charge predicates all the -elements of wantonness as set out in the following cases: B. R. & E. Co. v. Pinchará, 124 Ala. 374; B. 72. cG E. Co. v. Bowers, 110 Ala. 382; Ij. & N. R. R, Co. o. Anchors, 114 Ala. 498 and cases cited therein.
    Charge 5 states a legal truism.
    Charges 6 and 7 state indisputable propositions.
    Charge 8 draws attention to the lack of that element in Avantonness which distinguishes it from intentional infliction of injury as distinguished in many cases.- — ■ B. R. & E. Co. v. Pinchanh supra; B. R. & E. Co. r. Bowers, supra; Ij. & TV. R. R, Go. v. Anchors, supra.
    
   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.  