Counsel for appellee insist that the consideration and decision of this court in Karpeles v. City Ice Delivery Co., 73 So. 642,1 treating special charges J and M, is opposed to the present decision that charge A, quoted in the opinion ante, invaded the province of the jury, and to give it was error to reverse. The difference between those instructions and that involved on this appeal is radical and apparent. There the negligence hypothesized, viz. the excessive speed of the motorcycle which collided with defendant's automobile, was a character of negligence that might, in the order of causation have intervened to have afforded the sole (exclusive) proximate cause of the plaintiff's injury, thereby denying, by the hypothesis, the ascription of plaintiff's injury, for proximate cause, to either the negligence or the willful or wanton misconduct or omission of defendant's chauffeur. Here the alternative hypothesis in charge A is predicated of the violation of an ordinance which could not, in any possible event, have intervened to sever or to interrupt the order of causation which the jury may have found was put into motion through the wanton or willful acts of the driver of the defendant's truck. It was open to the jury to find under the evidence in this record that, notwithstanding the boy violated the ordinance by holding onto the truck while rolling on skates in a public thoroughfare, the driver of the truck willfully or wantonly so ordered its course and speed as to proximately cause the boy's injury. Certainly it could not be correctly said in this or any other case that under such circumstances the violation of *Page 493 the ordinance was of could be the sole, exclusive proximate cause of the injury thus suffered. The decision in the case of B. R., L. P. Co. v. Ely, 183 Ala. 383, 62 So. 816, is without bearing upon the question presented through the giving of charge A. quoted in the opinion ante. It is not possible to interpret this charge as submitting to the jury the inquiry "whether or not the defendant was guilty of willfulness or wantonness proximately contributing to the death of deceased." A reconsideration of the error pronounced upon the court's action in instructing the jury, at defendant's request, that deceased was a trespasser and guilty of a violation of the law in holding onto defendant's truck while on roller skates, confirms this court's opinion in that regard. This court did not feel authorized to ignore or disregard plain, pertinent testimony so as to avert the implication of error from an instruction that invaded the jury's province to pass upon such evidence. The extract from the oral charge of the court in which the jury was advised that:
"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"
— was not justified by the evidence; and to so instruct the jury was manifest error.
The application for rehearing is hence denied.
1 198 Ala. 449.