We think that the trial court erred in giving the affirmative charge as to count 2, the wanton one. The evidence showed that this was a popular street, and also tended to show that the defendant was running his car at from 45 to 70 miles per hour, and the jury could have inferred wanton misconduct on the part of the defendant. True, we have railroad cases holding that a high rate of speed alone does not amount to wantonness, but those are different cases. There the defendant was using its own track. Here the defendant was using a street open to the public, and which was quite popular. As to whether or not the error in giving this charge was rendered harmless by the verdict of the jury acquitting the defendant of simple negligence is at least debatable (McNeil v. Munson, Ship Line,184 Ala. 420, 63 So. 992), but a point we need not decide, as this case must be reversed for other reasons.
Charge 16, given at the request of the defendant, states a correct general proposition. Karpeles v. City Ice Co., 198 Ala. 449,73 So. 642. True, there may be exceptions to the general rule, as where the injured party, as in this case, is a child of tender years, but we think the charge hypothesizes exceptions as it says, "until it otherwise appears." We do not think the charge so worded was so misleading as to prejudice the jury against the plaintiff, and the giving of same was not reversible error.
Charge 15, given for the defendant, required too high a degree of proof by the plaintiff, and the giving of same was reversible error. A., G. S. R. R. v. Robinson, 183 Ala. 265,62 So. 813; Monte v. Narramore, 201 Ala. 200, 77 So. 726; Bice v. Steverson, 211 Ala. 103, 99 So. 639. The charge in question, in effect, requires the acquittal of the defendant, if there is an uncertainty on the part of the jury, be it ever so slight, as to any material matter or fact as to defendant's responsibility. The charge uses one of the very words, "uncertainty," as condemned in the Robinson Case, and wherein it was held to be reversible error to give charges which used the words "doubt or uncertainty." True, later on in the opinion, the court, while condemning charges, predicated upon a "state of confusion in the mind of the jury," and admonished the trial courts to refuse same, left open the question as to whether or not the giving of such a charge would be reversible error, but did in most unmistakable terms hold that the giving of charges as to doubt and uncertainty was reversible error. See, also, Monte v. Narramore, supra.
The cases of American Co. v. Landrum, 183 Ala. 132,62 So. 757, Carlisle v. Cen. of Ga. *Page 139 R. R., 183 Ala. 195, 62 So. 759, and Golson v. Covington,205 Ala. 226, 87 So. 439, did not deal with a charge like the one in question. It has been repeatedly held by this court that all expressions or statements in opinions or text-books do not necessarily form a basis for special instructions to the jury.
As this case must be reversed, it is needless to pass upon the motion for a new trial.
The judgment of the circuit court is reversed, and the cause is remanded.
Reversed and remanded.
SOMERVILLE, THOMAS, and BROWN, JJ., concur.