Birmingham Ry., Light & Power Co. v. Camp

• Decision Date: 20 May 1909
• Citation: Birmingham Ry., Light & Power Co. v. Camp, 49 So. 846, 161 Ala. 456 (Ala. 1909)
• Parties: BIRMINGHAM RY., LIGHT & POWER CO. v. CAMP.
• Court: Alabama Supreme Court

49 So. 846

161 Ala. 456

BIRMINGHAM RY., LIGHT & POWER CO. v. CAMP.

Supreme Court of Alabama

May 20, 1909

Appeal from City Court of Birmingham; C. C. Nesmith, Judge.

Action by Oscar L. Camp against the Birmingham Railway, Light &amp Power Company for injuries to a horse and buggy. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

The first count was in simple negligence and the second count was for wanton or willful injury. Charge 1 is set out in the opinion. The other charges refused to the defendant were as follows: (3) "If you believe from the evidence in the case that the motorman operated said car at a reasonable rate of speed around the curve, and that he honestly and reasonably thought the overhang on the rear end of the car would miss the buggy and horse, you must find a verdict in favor of the defendant." (4) "If you believe from the evidence in the case that the front part of the car passed safely by the vehicle, and that the rear end of the car would not have struck the vehicle unless the horse backed the buggy against the rear end of the car, you will find the verdict in favor of the defendant." (8) "Although the jury may believe from the evidence that the gong was not sounded, yet if you further believe from the evidence in the case that the motorman honestly and reasonably believed from all the circumstances that the car could and would pass the vehicle in safety, and that he operated said car at a prudent and careful rate of speed in rounding the curve, you cannot find the defendant guilty of negligence which proximately caused the damage to plaintiff's property." The following is charge 3, given for the plaintiff: "(3) The court charges the jury that it is not necessarily, as a matter of law, negligence in the slightest degree for the horse and buggy to have stopped near the curb and street car track, if the jury are reasonably satisfied from the evidence that they were so stopped."

Tillman Grubb, Bradley & Morrow, for appellant.

Bowman Harsh & Beddow, for appellee.

McCLELLAN J.

The property injured, as a result of the collision of a street car therewith, was the horse, buggy, and harness of the plaintiff. There was testimony tending to show injury to the harness, but an entire absence of evidence of the extent, in damage, of the injury to the harness. On this state of the evidence the defendant requested this special charge, which was refused: "Under the evidence in this case, you cannot award plaintiff any damages for any injury to or damage to the harness." It was incumbent on the plaintiff, as a condition to a recovery of damages for the injury to the harness, to show, not only the injury, but to adduce some proof from which the jury would be authorized to measure that injury in money. B. R. L. & P. Co. v. Harden (Al...