Opinion
7 Div. 191.
April 21, 1921.
Appeal from Circuit Court, Shelby County; E. J. Garrison, Judge.
Grady Reynolds, of Clayton, for appellant.
The complaint was subject to the demurrers. 194 Ala. 360, 70 So. 125; 16 Ala. App. 461, 78 So. 724; 12 Ala. App. 442, 68 So. 534; 16 Ala. App. 588, 80 So. 163. The mere fact that an injury has been sustained will not give rise to a presumption that the injury is due to the negligence of one who is made a defendant to an action based with error. 90 Ala. 8, 8 So. 142, 24 Am. St. Rep. 748; 20 R. C. L. 184. The defendant would only be liable for the negligent operation of his automobile. 193 Ala. 614, 69 So. 137.
Riddle Ellis, of Columbiana, for appellee.
All the questions presented were questions for the jury. 174 Ala. 616, 56 So. 997, 40 L.R.A. (N.S.) 890. The complaint was in all respects sufficient. 16 Ala. App. 461, 78 So. 724.
The complaint is not subject to any of the grounds of demurrer. It shows that defendant was driving his car along a public highway, and that defendant's colt was also on that highway, where each, as a matter of law, had presumptively an equal right to be. Reaves v. Maybank, 193 Ala. 614, 69 So. 137. Under those conditions it was defendant's duty to avoid injuring the colt, if he could avoid it by reasonable care in the operation of his car. This is a sufficient predicate for the charge that he negligently ran against the colt. Dozier v. Woods, 190 Ala. 279, 67 So. 283.
When the facts out of which the duty arises are alleged, it is not necessary to charge the legal conclusion that the duty existed. Postal Tel. Co. v. Hulsey, 132 Ala. 444, 31 So. 527; B. R., L. P. Co. v. Cockrum, 179 Ala. 372, 60 So. 304.
Unquestionably the colt was struck and injured by a motorcar, as alleged, and whether it was struck and injured by defendant's car or by some other car was under the evidence a disputed question of fact for the jury.
Finding that issue against defendant, we think it was also a question of fact for the jury to determine whether it was negligence for defendant to attempt to pass along the road in close proximity to this colt following its dam at so high a speed as 20 miles an hour, without the precaution of slowing down or blowing the horn in warning.
It was inferable from the testimony that the colt was in the middle of the road when struck, and, if so, it was the duty of the driver of the car to have regard for the timidity of so young an animal, and the possible consequences of its being frightened by the rapidly moving car.
It is certain either that the car ran upon the colt or that the colt shied against the car; and in either case the result may by reasonable inference be attributed to the negligent handling of the car under conditions open to the observation of the driver and fairly suggestive of the actual result.
We do not feel justified in holding that the trial judge erred in refusing to withdraw the question of negligence from the jury by giving the general affirmative charge for defendant.
Finding no error in the record, the judgment will be affirmed.
Affirmed.
ANDERSON, C. J., and McCLELLAN and THOMAS, JJ., concur.