Bay Shore Railroad v. Harris

67 Ala. 6

• Court: Supreme Court of Alabama
• Decided: December 15, 1880
• Status: Published

Opinion

STONE J.

— When injury is the direct and primary, or inevitable result of gross or reckless carelessness, an action of trespass will lie. But, when the injury, though proximate, is secondary or consequential — not the necessary result of the act of negligence — then, a special action on the case is the remedy. — Sheppard v. Furniss, 19 Ala. 760; Rhodes v. Roberts, 1 Stew. 145. The injury charged in the present complaint — in the original as well as the amended count — is secondary and consequential-; not the direct, primary, immediate effect of the wrongful or reckless act imputed to the driver. The direct, primary effect was the leap from, the car. The consequence was, that the child, by reason of its tender years, being unable to clear the track, was run over and its limb crushed by the wheels. If the driver had thrust or thrown the child on the track, and he was thus run over, all this would have been the direct result of the force employed, and trespass would have been the appropriate remedy.

The plaintiff in this case being under six years of age, was not of sufficient discretion to be guilty of contributory pegligence. — Govt. Street R. R. Co. v. Hanlon, 53 Ala. 70. The pleadings make a clear case for recovery. — Phila. & R. R. Co. v Derby, 14 How. U. S. 468; Levett v. Railroad Co. 9 Allen, 557; Wilton v. R. R. Co. 107 Mass. 108; S. C. 9 Amer. Rep. 11.

Charge numbered 7, asked by defendant, probably asserts a correct legal principle. We think, however, that an average jury would be misled by it into the erroneous conclusion that plaintiff could recover only for the actual injury and suffering be bad sustained and undergone at the -time of tbe trial. That is not tbe rule. He was entitled to recover for tbe disabling effects of the injury, prospective as well as past. S. & N. Railroad Co. v. McLendin, 63 Ala. 266. It is not error to refuse a charge which may mislead, or requires explanation. — Bynum v. So. Pipe & Pump Co. 63 Ala. 462; Duvall & Pelham v. The State, Ib. 12; Farrish v. The State, Ib. 164, and authorities_there cited.

Affirmed.