The undisputed evidence shows that the defendant backed his automobile from his garage to the public street in the city of Jasper, and that in so doing he backed across the public sidewalk and ran over and severely injured the plaintiff, *Page 114 a child then about two years old. The defendant testified that on starting the car he told his wife, who was on the back seat on the left side, to look out on that side, and she reported that everything was all right, and to go ahead; that he, himself, looked and was looking back around the car down the driveway to the street, and no one was in sight. He stated, however, that he could not see immediately behind the car, and that he could see only half of the driveway on his side, the other half — the half on the right — not being within his vision. He stated, further, that he blew his horn once or twice, and backed the car very slowly.
Defendant's wife testified that she rose up as the car started, and looked back and also around her side of the car — the right — and no one was in sight, and that she did not look again.
The child was found under the front axle, on the right side, against the right front wheels. The front wheels of the car, when stopped, were about the outer edge of the sidewalk, according to the testimony of one witness. Another witness testified that they had cleared the sidewalk by several feet. The evidence tended to show that when the occupants of the car first became aware that the child was under the car the car was over the sidewalk, and its rear wheels had passed across. No other observation was made, nor lookout kept, by defendant, before and during the movement of the car, than as stated above.
On this testimony we are constrained to hold that it was a question for the jury to determine whether the operation of this car backwards over this public sidewalk, without other precautions as to lookout, and without seeing or knowing whether any person was on the sidewalk in a place of danger as the car was about to pass over, showed an exercise of due care under the circumstances, or such an absence of care and prudence as to constitute negligence. Under this view of the evidence, the general affirmative charge was improperly given for the defendant, and the judgment must be reversed.
It is suggested that the court and jury viewed the scene of the accident, and hence the giving of the general charge cannot be reviewed. It is sufficient to say that the bill of exceptions does not show that such a view was taken, and therefore that suggestion cannot be considered.
Reversed and remanded.
ANDERSON, C. J., and McCLELLAN and THOMAS, JJ., concur.
On Rehearing.