Opinion
6 Div. 666.
January 24, 1918.
Appeal from Circuit Court, Jefferson County; C. W. Ferguson, Judge.
McCullough Thomas, of Birmingham, for appellant. Tillman, Bradley Morrow, of Birmingham, for appellee.
There was no evidence whatever introduced in this case tending to fasten willful or wanton misconduct or subsequent negligence upon the defendant's servants in the operation of its car, and the trial court properly gave the general charge for the defendant as to the wanton count, and could have, with equal propriety, given it as to the subsequent negligence counts. This being the case, any error committed in ruling upon the demurrer to the defendant's special pleas as applicable to said counts, if erroneous, was error without injury.
It may be conceded that there was proof sufficient to make it a question for the jury as to the establishment of the initial negligence count, and that the trial court erred in overruling the plaintiff's demurrer to some of defendant's special pleas as to said count, but this, too, was error without injury, as some of said pleas were good and were proven without dispute. It is sufficient to say that pleas 9 and 10 were not subject to the plaintiff's demurrer, and that they were established beyond dispute by the plaintiff's own evidence. Plea 9 does not possess the infirmity pointed out to plea 10 in the case of Birmingham R. R. v. Demmins, 3 Ala. App. 359, 57 So. 408. Plea 9 avers that the plaintiff went upon the track, and remained upon the track when the approaching car was in "dangerous proximity." Indeed, we have seen but few cases that present a more palpable act of initial and continuing contributory negligence than the one in question both on the part of the plaintiff and the driver for whose act plaintiff was responsible, as he had control of him, though it may be conceded that the negligence of the driver was not properly pleaded. They both saw the car and knew of its approach, abandoned a lookout, and passed these crossings without paying any attention to the car, when by the slightest caution the injury could have been avoided either by the plaintiff or the driver. As the defendant was entitled to the general charge as to all of the counts, any error that may have been committed in giving or refusing special charges was error without injury.
The judgment of the circuit court is affirmed.
Affirmed.
MAYFIELD, SOMERVILLE, and THOMAS, JJ., concur.