In Birmingham Railway Electric Co. v. Pinckard, 124 Ala. 372,26 So. 880 [cited by appellee in brief on rehearing], there was evidence tending to show, "that at the place of the collision the avenue for the use of vehicles was very narrow, not affording sufficient room for the passage of two vehicles without throwing one within a few inches of defendant's tracks, and that at this point the driver of plaintiff's buggy was forced up against or near defendant's tracks by a passing carriage or barouche; that at this place the defendant operated a double line of tracks, and a passing car on the south tracks, going in an opposite direction, frightened plaintiff's horse, which, to a degree rendered him unmanageable; that, while the driver was endeavoring to pull the horse from the tracks, a car approaching from the rear on the north line of tracks next to the traveled part of said avenue, and at the rate of speed above mentioned [15 to 20 miles per hour], was about a block or a block and a half away with nothing to obstruct the view; that the woman, Mary Jeter [who was in the buggy], hallowed to the motorman of the approaching car, and made signs to him by throwing up her hands, but that no effort was made by the motorman to stop or reduce the speed of the car until after the collision which resulted in the injury complained of." 124 Ala. 374,26 So. 881. [Brackets supplied.]
This evidence warranted an inference that the motorman driving the street car had knowledge of the impending peril of the property injured or destroyed by the collision in time to have avoided the collision, supplying the element of knowledge essential to wantonness and for that matter willfulness. Central of Georgia R. Co. v. Corbitt, 218 Ala. 410,118 So. 755.
In the instant case there is an absence of evidence showing that Smith had knowledge that plaintiff's intestate had placed himself within the range of the bolster which flew around or was knocked around and injured him; that his (Smith's) effort to right the truck and bring it to the right lane of the highway would cause the bolster to change its position, or that it extended over the side of the truck and would probably come in contact with the passing vehicle. These essential elements of wantonness were at best left to conjection pure and simple. Southern Ry. Co. v. Woodstock Mills, 230 Ala. 494, 161 So. 519.
Application for rehearing is overruled.
GARDNER, C. J., and THOMAS and LIVINGSTON, JJ., concur. *Page 404