James Renfroe, a minor a few months under 12 years of age and a son of the plaintiff (appellant) was killed as the immediate result of his head's striking the paving of a public thoroughfare in the city of Birmingham. The boy was on roller skates at the time. According to the plaintiff's theory the boy was holding on, either to the side of the defendant's (appellee's) moving auto truck, or to the rear thereof, in order to be drawn along the paved way, on his skates, by the power of the truck. The complaint contained two counts; one ascribing the fatal injury to simple negligence, and the other attributing the fatal injury to wanton (not willful) misconduct or omission for which the defendant is responsible. Besides the general issue, the defendant interposed special pleas 1, 2, 3, 4, and 6. The report of the appeal will reproduce these pleas. Plea 5 was stricken at plaintiff's (appellant's) instance. Pleas 2, 3, 4, and 6 were sustained as against the count charging simple negligence, but were eliminated as *Page 491 asserting efficient defenses to the count charging the aggravated wrong set forth in the second count.
The unfortunate boy was a trespasser if he took hold of the truck in his effort to gain a ride; and, if his injury occurred while he was so related to the moving truck, the plaintiff could not recover unless the defendant's servant or servants in charge of the truck then knew that he was in a position of peril, and either through simple negligence proximately caused his injury, or willfully or wantonly proximately caused his injury. Jefferson v. Birmingham Ry. Co., 116 Ala. 294, 301,22 So. 546, 38 L.R.A. 458, 67 Am. St. Rep. 116.
The averments of pleas 2, 3, and 6, to which appellant's demurrers were overruled and of which rulings assignments of error are predicated, did not assert a character of contributory negligence that was effective to defeat plaintiff's right to recover as for simple negligence after the discovery of the boy's peril. These pleas did assert a character of contributory negligence that might have been effective to bar a recovery for initial negligence on the part of the defendant's servant; but they did not even purport to assert a negligent act or omission by the boy or his parent that was coincident or concurrent with negligence on the part of defendant's servant or servants after the discovery of the boy's peril which was efficient to characterize the boy's, or the father's, act or omission in the premises as contributorily negligent to the bar of a recovery for simple negligence after the discovery of the boy's peril. L. N. R. R. Co. v. Young,153 Ala. 232, 235, 45 So. 238, 16 L.R.A. (N.S.) 301; Anniston Elec. Co. v. Rosen, 159 Ala. 195, 48 So. 798, 133 Am. St. Rep. 32. We understand the court to have instructed the jury that the plaintiff should not recover unless the defendant's agent was guilty of simple negligence, after the discovery of the boy's peril, or willfully or wantonly caused the boy's injury. In the circumstances made by the evidence and the stated restrictive instruction of the jury by the court, no prejudice could have reasonably resulted to the plaintiff by the action of the court in overruling the demurrer to the pleas; this whether the pleas were faulty or not, a question it is not thought necessary to consider. Under the evidence and the averments of the two counts, the issues, within the range of the stated possible rights of the plaintiff to recover, were due to be submitted to the jury for decision.
The city of Birmingham had the power and authority to pass the ordinance quoted in the fourth plea. Code, § 1251. The argument of appellant's counsel against its validity has been accorded careful consideration. Our opinion is that the ordinance is clearly valid, even though its terms are regarded as including an inhibition against the act of an owner or of his child "while on roller skates or bicycle" catching or grasping "any street car or any other vehicle which is moving upon the streets of Birmingham." The police power of the municipality in respect of such matters, importing the manifestly humane and conservative purpose of that authority over its streets and people using them, amply justified the enactment of the ordinance in the broad terms it employs. The ordinance considered by the court in Miller v. Eversole, 184 Ill. App.? 362, was materially different from the ordinance here involved. There the prohibition included stationary vehicles, and did not at all depend for its rationale upon the safety of either persons or property in public thoroughfares, but, to the contrary, conditioned its restraint or inhibition upon the consent of the owner; whereas the ordinance here under consideration intends without restriction the preservation of the safety of persons in public thoroughfares. The cases of State v. Wittles, 118 Minn. 364, 136 N.W. 883, 41 L.R.A. (N.S.) 462, Ann. Cas. 1913E, 433, Mobile v. Orr, 181 Ala. 314,61 So. 920, 45 L.R.A. (N.S.) 575, and Chicago v. Gunning,214 Ill. 628, 73 N.E. 1035, 70 L.R.A. 230, 2 Ann. Cas. 892, are without bearing on the question of the validity of this ordinance.
The sixth assignment complains of the action of the court in admitting the ordinance in evidence. The bill of exceptions recites:
"Counsel for defendant here introduced in evidence section 22 of an ordinance of the city of Birmingham, being part of Ordinance 174C, entitled 'Laws to further regulate the use of the public highway in the city of Birmingham.' Plaintiff objected to the introduction of said ordinance on the ground that it was irrelevant, immaterial, illegal, and unreasonable and not binding in this case. It was here admitted by counsel for plaintiff to save the trouble and expense of having a witness brought up from the city hall to prove said ordinance, that the ordinance admitted was identical with the regular duly passed ordinance book, and in that way waived further proof. The court overruled the objection. Plaintiff then and there duly and legally excepted to the ruling of the court."
It is insisted that this was error because it was not shown that the ordinance was in force and effect at the time in question. The admission and waiver expressed in the quoted recital from the bill of exceptions precluded any subsequent complaint by appellant in the premises.
In the oral charge, the court said to the jury:
"All persons are forbidden to use the streets of the city for skating thereon. To do so is an unlawful act of trespass on the part of the person so guilty."
There was, so far as we have discovered, no evidence to justify this statement. It was stated by one of the young companions of the plaintiff's son that in certain parts of the city (down town, it seems) skating was not permitted. This statement was erroneous; and this court is not able to affirm that the advice thereby given the jury had no *Page 492 prejudicial effect. From it the jury would quite naturally conclude that plaintiff's boy was violating the city's laws when he went on the street, in which he was killed, without regard to whether he caught hold of a moving truck or other vehicle or not.
At the request of the defendant, the court gave the jury this special instruction:
"The court charges the jury that deceased was a trespasser and guilty of a violation of the law in holding on to defendant's truck while on roller skates."
In view of the evidence of the defendant's witness Megerson, who testified that the boy never did catch hold of the truck, this instruction invaded the province of the jury, and should not have been given. If, however, he did catch hold of this moving truck while he was on roller skates, he was a trespasser, and offended the ordinance set out in plea 4.
The court gave this special instruction, which we letter A, at the request of the defendant:
"The court charges the jury that if they find from the evidence that deceased was killed as a sole proximate consequence of his own negligence or as a sole proximate consequence of the violation of the city ordinance introduced in evidence, you cannot return a verdict in favor of plaintiff under either count of the complaint."
Under the issues and the evidence this instruction was erroneously given. It was affirmatively faulty not merely calculated to mislead the jury. Its immediate effect was to conclude against a recovery under the wanton count upon an alternative hypothesis, predicated on the prohibition of the ordinance and its violation by plaintiff's son, that could, under no circumstances, have justified the willful or wanton injury of the boy. There was evidence tending to show that the boy had hold of the side of the moving truck, between the front and rear wheels on that side; that the driver saw him there and knew he was rolling on his skates; that the driver, so advised, accelerated the speed of the truck and gave it a zigzag course; that, under these circumstances, he directed the truck over the surface of the street which was uneven or rough because of a railway, about the rails of which a different and less smooth quality of paving was laid; and that when the wheels of the boy's skates struck this less smooth surface of the street the boy was either immediately thrown to the pavement, or the rear wheel of the truck caught one of the skates fastened to his foot, broke the skate, and released it from his foot. In view of the tendencies of the evidence going to show that the truck wheel caught the skate attached to the boy's foot, the conclusion is that the question whether the averments of the counts that the truck "ran upon, against, or over plaintiff's said minor son" were sustained by the evidence was due to be submitted to the jury, and could not, without invading the jury's province, be decided by the court. The trial court correctly defined the character of the action; it being brought under that feature of the Homicide Act authorizing the parent to sue for the death of the child (Code, § 2485); and the recovery and its measure is punitive only.
Since this court has long recognized a distinction between an injury intentionally wrongfully inflicted and an injury proximately resulting from a wanton act or omission (Birmingham El. Co. v. Bowers, 110 Ala. 328, 331, 20 So. 345; among others; 4 Words and Phrases, pp. 1235, 1237, 1238), the special instructions copied in assignments of error numbered 19 and 20 (the report of the appeal will reproduce them), given at the instance of the defendant, should have been refused. The judgment is affected with error. It is hence reversed, and the cause is remanded.
Reversed and remanded.
ANDERSON, C. J., and SAYRE, J., concur. GARDNER, J., concurs in the reversal and in the opinion; except with respect to that part of the opinion touching the special instruction lettered A.
On Rehearing.