Mobile Light & R. R. v. Baker

ANDERSON, J.

The trial court erred in sustaining the demurrers to the defendant’s pleas 2 and 3 to the third count of tire complaint as amended. This count *495 was for simple negligence, and contributory negligence was a good defense to same, and whether the pleas were sufficient, as such, we need not determine, as the second ground of demurrer is the only one which questions the pleas as applicable to the third count, and they were not subject- to the defect therein suggested. The pleas as refiled after amendment of the complaint went to each count thereof. It may be that the plaintiff intended to demur to them only so far as they answered the second count; but the second ground refers to the third as well as the second count, and the judgment entry shows that the demurrer was sustained to the pleas to both the second and third counts of the amended complaint.

Declarations or admissions of an agent as to the act then being done are admissible as a part of the res gesta1, but this does not apply as to admissions as to past transactions. — Tenn. Co. v. Kavenaugh, 98 Ala. 324, 9 South. 395; Chewning v. Ensley Ry. Co., 100 Ala. 493, 14 South. 362. The declarations made by the motorman were subsequent to the collision, were not part of the res gesta1, and should not have been admitted over the objection of the defendant. — M. & C. R. R. v. Womack, 84 Ala. 149, 4 South. 618.

Whether the defendant was entitled to the general charge or not, upon the theory that plaintiff did not make out a prima facie case, with the improperly admitted declarations of the agent in, we need not decide, as the case must be reversed upon other grounds. It is sufficient to say, as a guide upon the next trial, that in the absence of some proof tending to show that the car could have been stopped, after the discovery of the plaintiff’s peril, in time to avoid the collision, there was no wanton misconduct or subsequent negligence. Nor was there any simple antecedent negligence, unless the evidence tended to show that the motorman could have dis *496 covered tlie plaintiff in tlie attempt to cross in time to stop the cars before the collision, and negligently tailed to do so. Under the averments of the complaint, and from the tendency of the evidence, the collision was at a street, crossing; but, if not at a crossing, it was at a point where defendant’s track was in or upon a public highway, and it was the duty of the motonnan to keep a lookout. — Birmingham R. R. v. Brown, 152 Ala. 115, 44 South. 572; Birmingham R. R. v. Brantly, 141 Ala. 615, 37 South. 698. So, too, was it a fact that some little time elapsed between the time the hone started across the track and when the front wheels struck the opposite , rail, which was the time of the collision; yet there was no proof of the distance of the car from the plaintiff when the horse first went upon the track, or of the rate of speed it was going, and whether or nor it could have been stopped between the time of tlie collision and when the motorman discovered the plaintiff’s peril, or should have discovered it, had he kept a lookout.

The judgment of the law and equity court is reversed, and the cause is remanded.

Reversed and remanded.

Tyson, C. J., and Simpson and Denson, JJ., concur.