Assignments of error, relating to the overruling of the defendant's demurrers, not being sufficiently insisted upon in brief of appellant, are waived, and are not considered. Dowling-Martin Grocery Co. v. J. C. Lysle Milling C., 203 Ala. 491,33 So. 486; Barbour Plumbing Co. v. Ewing, 16 Ala. App. 280,77 So. 430; Id., 201 Ala. 237, 77 So. 763; Lynn v. Kelly, 204 Ala. 206, 85 So. 394.
There was no reversible error in refusing to require the plaintiff to answer the question propounded to her on cross-examination that she may have said to Dr. Jackson that when she first saw the train it was about 20 feet away, and that she did not know what happened. The witness had just stated previous to this question that she did not remember what she stated to Dr. Jackson on the occasion inquired about. To have admitted what she may have said, under these circumstances, would be to submit to the jury testimony of a highly speculative character.
There was ample evidence, as appears from the record, upon which to submit the hypothetical question to the witness as to the distance within which an engine and three cars could be stopped, running 15 miles an *Page 166 hour, by the application of an emergency brake.
Count 4 of the complaint, which among other things alleged that the crossing where the injury took place was continuously and constantly used by a large number of people, and this fact was known to the appellant, had not been eliminated at the time appellant made its motion to exclude the testimony of the witness Adams, to the overruling of which motion the appellant reserved an exception. Moreover, the alleged extraordinary character of the testimony, which was stated as the basis of the objection, was brought out on direct examination and cross-examination, without any objection on the part of the appellant, and it is doubtful if appellant should thus have speculated. If there was any merit in the objection it came too late.
There was error in giving written charge 1 for the plaintiff. This charge ignores the proposition that the servants or agents of defendant's train must have discovered the perilous position of the plaintiff in time to have avoided the injury. It is true that Judge De Graffenried in the case of B. R., L. P. Co. v. Demmins, 3 Ala. App. 375, 57 So. 410, uses the language incorporated in the charge, but a reading of the opinion in that case, and the part of the opinion cited in the case of Armour Co. v. Alabama Power Co., 17 Ala. App. 280,84 So. 628, discloses that the following language in the opinion follows that incorporated in charge 1, as follows: "We have often held that if the plaintiff's peril was discovered in time to avoid the injury," etc., plaintiff would be entitled to recover. The charge as given fastens liability on the defendant, if he does not, upon discovery of the perilous position of the plaintiff, so regulate the speed of the train as to bring it to a stop. This might be an impossibility — indeed under the evidence offered in this case by the defendant it was an impossibility, its contention being that the discovery of the plaintiff's position was only made when it was within a few feet of her. It is also true that the oral charge and one or more given written charges embody the instruction that the perilous position of the plaintiff must have been known in time to have avoided it, but given instruction 1 is just as emphatic that this was unnecessary, and we are unwilling to declare that the giving of this charge, even under these circumstances, was not injurious to the defendant.
There was no error in giving written charge 2 for the plaintiff. B. R., L. P. Co. v. Demmins, 3 Ala. App. 375,57 So. 410.
The record does not disclose that any pleas were filed by the defendant to count 2 as originally filed, or as amended, and the judgment entry reciting that the trial was had on issue joined, it will be presumed that the trial was had on the plea of the general issue. Odum v. Rutledge, 94 Ala. 488, 10 So. 222; Hatchett v. Molton, 76 Ala. 410. Under this plea, no acts of contributory negligence could be shown, nor could such acts, in the absence of such special plea, defeat a recovery by the plaintiff, if otherwise entitled to recover. S. A.L.R. R. v. Laney, 199 Ala. 656, 75 So. 15; Ala. Great So. Ry. v. McWhorter, 156 Ala. 269, 281, 47 So. 84.
Written charge 3 was properly given for the plaintiff under the pleading in this case. Written charge 3, refused to the defendant, was substantially covered by written charge 2 given the defendant. Written charges 8 and 9 were substantially covered by other written charges given the defendant. Written charges 13, 15, and 16 were properly refused to the defendant.
No question of initial negligence was at issue under count 2, this being the count under which the case was tried, and the doctrine of "stop, look, and listen" had no application. The facts in this case did not justify the giving of written charge 18, and there was no error committed in its refusal. The defendant was not charged with willful and wanton negligence, consequently there was no error in the refusal of written charge 19.
The general affirmative charge was rightly refused to the defendant. There was evidence on the part of the plaintiff and her witnesses that tended to show that she was in a perilous position on defendant's railroad track, and that this was known, or could have been known, to the operatives of defendant's train in time to have avoided the injury. On the other hand there was evidence on the part of the defendant which tended to show that while plaintiff was in such a position she was suddenly placed there, by using the forward instead of the reverse gear on her car, and that such position was attained when its engine was within a few feet of her, and that they did all that was known to skillful operatives of a train to avoid such injury, and with these two conflicting lines of testimony, it is evident that the question of the defendant's liability was one for the jury. Other assignments of error not insisted upon in brief and argument will not be considered.
For the error pointed out, the judgment is reversed, and the cause remanded.
Reversed and remanded. *Page 167