Yarbrough v. Carter

60 So. 833, 179 Ala. 356, 1913 Ala. LEXIS 318

• Court: Supreme Court of Alabama
• Decided: January 21, 1913
• Status: Published

Opinion

MAYFIELD, J.

Count 1 of the complaint as amended states a good cause of action as for willful or wanton injury, and was not subject to the demurrers interposed. The count alleges in terms that the injury complained of was wantonly or willfully inflicted by causing an automobile to run over or against the plaintiff. Such averments have been repeatedly held sufficient by this court, and distinguished from that line of cases, cited and relied on by appellant, in which the counts attempt to set forth the facts relied upon to show wanton or willful injury, when such facts so set forth do not support the conclusion of the pleader as to wantonness or willfulness. — 6 Mayf. Dig. 669,

The court properly declined to give the charges requested by the defendant. One was in effect, and the other in form, the general affirmative charge for the defendant. We hold that there Avas evidence to carry the issue to the jury.

There was no error in the court’s allowing the municipal ordinance of the city of Birmingham to be introduced in evidence. The ordinance was intended to prohibit the running of automobiles on the streets of that city in excess of ten miles per hour. While there was no count of the complaint claiming damages as for a violation of this ordinance, yet the ordinance, in connection with evidence that the defendant Avas, at the time of the injury complained of, violating the speed limit fixed in this ordinance, and in connection with other facts and circumstances, was admissible as evidence for the jury to consider in determining whether the wrongful act complained of was Avanton or willful. It is true that this court has frequently decided that violation of such an ordinance as to speed limit is simple negligence only, yet it does not folloAV that it is not admissible, in connection with other evidence, to show that the act complained of was Avanton. The rule announced in Adler v. Martin, 179 Ala. 97, 59 South. 597, is not infringed nor overlooked in this case. In that case there was a count declaring specially as for a violation of the ordinance as to speed limit for automobiles, and, of course, it was necessary to show thal thé ordinance was in force at the time of the alleged injury, in order for plaintiff to recover.

We are not prepared to say that the trial court erred in overruling the defendant’s motion for a new trial. The ground here insisted upon, as one on which the motion should have been granted, is that the defendant was brought into court, on the charge of being in contempt of court, by making a noise with his automobile which disturbed the court in the discharge of its business, to wit, while engaged in the trial of this particular case; and that the defendant was thus brought, by two deputy sheriffs, before the court, and into the presence of the jurors who were to render the verdict in his case, which was an action to recover damages for personal injuries inflicted by the defendant with an automobile.

It appears that the judge was not aware that the defendant was the person ordered to be brought into court, nor until defendant was before him; but that the judge then did all that he could, to prevent prejudice, by having the jury to retire.

Moreover, there seems to have been introduced, on the hearing of the motion, no proof to establish the facts or allegations set forth in the motion; and as the allegations were denied by the plaintiff, and the judge who passed upon the motion is shown to have had a personal knowledge of the occurrence, we are, of course, not prepared to say that he was in error in his ruling thereon.

Finding no error, the judgment of the lower court is affirmed.

Affirmed.

Dowdell, C. J., and Anderson and de G-raffenried, JJ., concur.