The Montgomery advertiser. [volume] (Montgomery, Ala.) 1885-1982, 1904-07-18
MONTGOMERY STREET 4
RAILWAY

STREET RAILWAY
co. VS.. SHANKS.
Action against Street Railway Company
to recover damages for personal IN
'turies--Appeal from the City Court
of Montgomery.
1. Action against NStreet railway
Germany for negligence; sufficiency OF
cnm Ma lnt--In an action against, a
strect railway company to recover
damages for personal injuries. COM
nIo,nt states O cause OF action Tor
simple negligence, which alleges In
substance that ON q street In city a
horse hitched to q buggy in which the
plafntiff was sitting, backed the vehlcle
on or near to the defendants railway
In front Of an approaching street car,
ana that while the motorman in charge
Of the car was a long way OF from
plaintiff. to wit more than 100 feet, he
observed or could have observed"
plaintiffs situation and that nothwith-
standing this fact the motorman "negli-
gently continued on his course with
said car, without stopping or checking
said car, and negligently came into
collision with plaintiffs said horse and
buggy" whereby she was thrown to the
ground and injured.
2. Contributory negligence; suf-
ficiency Of p1ea.-Pleas seeking to set
up contributory negligence on the part
of plaintiff. in an action to recover
damages for personal injuries, but
which attribute to the plaintiff con-
duct which may or may not have been
negligent. and fail to aver that such
conduct was negligent. except as a con-
clusion of law resulting necessarily
from the act or omission charged. are
insufficient and subject to demurrer
Co -plaoa SaakfnO set
the contributory negligence of the
plaintiff, in an action to recover DANA
ges for personal injuries. which do not
with certainty impute to the plaintiff
the omission of any duty or the COM
mission of any act negligent or other
wiae, are insufficient and subject to de-
murrer.
4. Action to recover for personal in
juries; aimissibility of evidenc; res
gestae.-In an action by a woman. to
recover damages for personal injuries,
testimony that the plaintiff cried all
the afternoon of the accident and that
she complained of pain the next morn
ing after the accident, is admissible In
evidence as a part of the res gestae of
the injury.
s. Action against street railway to
recover for personal injuries: testi-
mony as to speed of car.-In an action
against a street railway company to
recover DANCES for personal injuries
alleged to have been sustained by
reason of a collision between one of
defendants cars and buggy in which
the plaintiff was sitting. 1t Is competent
for the plaintiff as a witness in testify
ing as to the speed of the car that col
li5ed with said buggy, to state that 1T
looked very fast to me-"
Att AGAINST street railway
company to recover damages for per-
sonal injuries; when general affirmative
charge properly refused.--In an action
against street railway company to
recover damages for personal injuries
alleged to have been caused by the
negligence of motorman. where the
evidence is in conflict as to whether the
motorman did all within his power to
stop the car in time to prevent the In
Jury, the general affirmative charge re-
quested by the defendant is properly
refused.
7. Same; charge as to motorman's
knowledge as a result of collision.-1r
ouch a case, where there was evidence
tending to show that the motorman saw
the situation of the plaintiff in time
to have prevented the collision result
ing IN the accident. charges requested
by the defendant which purport to de-
termine the motormans duty in respect
of his stopping the car upon his certain
knowledge that his failure to do sc
would result in n collision with the
plaintiffs buggy, are erroneous and
properly refused.
8. Same: same.-In such a case
where there is conflict in the evidence
as to whether the motorman of the de
PENDANT in charge of the street car was
guilty of negligence, and as to whether
the plaintiff was contributory negli-
gence. charges which assume either
that the defendant was not chargeabl'
with negligence or that the plantif
was guilty of contributory negli
gence, are invasive of the province Of
the jury and are properly refused.
g. Same: same-In such a case
| charges which assume that plaintiff
was under the burden of proving i'm
| material. we'll as material averment,
| of the complaint, are erroneous ant
properly refused.
Affirmed.
opinion by Sharpe, j.