43 So. 832 | Ala. | 1907
When this case was here on former appeal, the; principles controlling its determination were stated to he these: “The plaintiff, of course, had a right to he where he was and as he was when he was injured in consequence of his mule becoming frightened by defendant’s tiain. But the road along which he had been traveling, and upon which it- was his purpose to cross the railroad as soon as: defendant’s train or engine got out of the way, was not a public road. Therefore defendant’s trainmen wore under no duty to keep a lookout for him, but their duty in respect to him arose only after they became aware that his mule was becoming frightened by the engine, or the noises being made by the operation of the engine, they failed to use every means at hand which a man of ordinary care and prudence would have had recourse to, to allay the fright of the animal, such as abating the noises, stopping the engine, that being practicable, etc., and injury resulted from such failure to the plaintiff, the defendant would be liable in damages in this action.”—A. G. S. R. R. Co. v. Fulton, 144 Ala. 340, 341, 39 South. 282. It was also held that it was a question for the determination of the jury, under the testimony as adduced upon the trial, whether the trainmen were negligent after discovering the fright, of Ihe mule, and also whether, “after becoming aware of the presence of the mule, with plaintiff in the vehicle, to which it was hitched, and before them were any indications of fright in the mule, they caused the engine to emit unusual and unnecessary noises calculated to frighten a mule of ordinary gentleness, and which frightened the mule and caused the injury complained of.” However, the testimony before us then was much fuller than is shown by the present record. In this record the testimony established without dispute that the engineer, who alone had charge of the engine, never saw the mule until after it had become excited or frightened. It follows, therefore, that charge No. 2, requested by defendant, relative to the fourth count of the' complaint as amended, should have been given. ’
It appears bv the record that' a, demurrer was sustained to counts 1, 2, 7, 8, and 9, and overruled as to counts 3, 5, and 6, after amendment. On former appeal a consideration of the sufficiency of the averments of these latter counts as amended was eliminated, because it was shown by the record that the court affirmatively charged the jury there could bé no recovery upon them. No such action appears to have been taken with icspect. to them upon the trial from which this appeal is prosecuted. And it is now insisted that the demurrer interposed to each of them should have been sustained, and this insistence is well taken.—A. G. S. R. R. Co. v. Fulton, supra; Central of Ga. Ry. Co. v. Freeman, 134 Ala. 354, 32 South. 778; and authorities cited in brief of appellant’s counsel. It was doubtless the purpose of these counts to charge a wanton or intentional wrong, and such seems to have been the court’s construction of them, as shown by the refusal of charge numbered 20, requested by defendant. • If it be assumed that they do so charge, the evidence did not support them.
Reversed and remanded.
