101 Ala. 219 | Ala. | 1893
The bill of exceptions sent up as a return to the certiorari awarded by this court must be regarded as the true and correct record, since there is a difference between it and the transcript of the cause as originally filed. — Pearce v. Clements, 73 Ala. 256.
We settled the principle in the beginning, and have not departed from it since, that "when a document is sought to be made a part of a bill of exceptions by reference, and not by copy, it must be so described by its date, amount, parties, or other identifying features, that the transcribing officer can, unaided by memory, readily and with certainty determine, from the description itself, what document or paper is referred to, without room for mistake.” — Looney v. Bush, Minor, 413; Parsons v. Woodward, 73 Ala. 348. In this bill of exceptions, we find two blanks left by the judge signing it. The first occurs
The second blank is at the point where the judge refers to the written charges of the plaintiff and the defendant in these words : "The court gave the following written charges to the jury, at the request of the plaintiff. To the giving of each of said charges, the defendant then and there made a separate objection to the giving of each of said charges, and the clerk will set out each of said charges.” And, "The defendant requested the court to give the following written instructions to the jury. The court refused to give each of said instructions, and the defendant then and there made a separate exception to the refusal of the court to give each of said charges. The clerk will here set out said charges.’ ’ The certiorari awarded in the cause by this court, on a suggestion .of an incomplete record, required the clerk to certify a full and complete copy of the bill of exceptions as signed, and copies of the charges asked in the cause,
The evidence is without contradiction, that the child that was killed Avas about eighteen months old; that it had Avandered unattended out of its father’s yard, and had gone doAvn the railroad track, which was about 50 feet from the dAvelling, and tAventy-five feet from the yard fence, some hundred and fifty yards, and had clambered up on the track, just as the train was approaching ; that its father, the plaintiff, had arrived at the house from toAvn, about a half an hour before, and was at home Avhen the train passed his door; that he knerv the train Avas coming, as it was preparing to do so when he passed the depot, on his Avay home, and he kneAV the schedules of the trains on that road ; that on arrival at home, he saAV the child in the kitchen and jfiaying about the yard, a few minutes before the train came along; that the train passed and stopped, and he was soon informed his child had been injured, and he supposed it had pushed open the gate to the yard fence, and gone out. Here, then, was a very young child, living within fifty feet of a railroad, along which trains were in the habit, of passing several times a day, allowed to play by itself in the yard with the gate to the yard fence so inse
The evidence of the witnesses for the defense tends to show, that the train was supplied with a sufficient force, and with the necessary and proper appliances for moving and controlling it; that a careful lookout for obstacles on the track ahead was observed by the engineer ; that as soon as the child came into view, it was discovered, and all preventive appliances were at once put into operation to save it, but without avail; that it was not discovered in time to prevent the accident, and there is nothing tending remotely to show, so far as their evidence discloses, that the engineer and the force under him were unwilling or indifferent to do what they could to avoid the deplorable accident, after they discovered the-exposure of the child. On the other hand, there is evidence introduced by plaintiff, competent for the jury to consider as tending to show, that he and his crew did not do all that might and ought to have been done to prevent the accident, after the peril of the child had been discovered — Williams v. S. & N. Ala. R. R. Co., 91 Ala. 635, 9 So. Rep. 77; Frazer v. S. & N. Ala. R. R. Co.,
The witness, Nichols, who testified he had been an engineer on a railroad for twenty years, swore that he had examined the ground at the place of the accident, and knew the road, and, presuming the engine to be in good condition, with all the modern appliances in general use, and known to skillful engineers, — and such the evidence tends to show was the condition of this engine,— this train, by the use of such appliances, could have been-stopped inside of one hundred and fifty yards. The engineer of the train testified, that the engine was about one hundred and fifty or one hundred and seventy-five yards from the child, when he first saw it, and that it was two hundred yards from the point where he first began to reverse his engine to the place where he stopped the train. The evidence of the witness, Nichols, leaves some ground of inference, on the part of the jury, which we are not permitted to withdraw from them, that the engineer failed to promptly use all available appliances to stop his train before reaching the child.
Pleas Nos. 2, 3 and 4, as amended, present, each, a complete defense. The demurrer to plea No. 2 was properly overruled. Pleas 3 and 4, as applied to the 7th count of the complaint, were no answers thereto, and the demurrers to them were properly sustained. Pleas 3 and 4, as applied to the 8th count, furnished answers thereto, and the demurrers to them should have been overruled. But this was error without injury, since the defendant had the benefit of the same facts under the general issue. — 2 Brick. Rig'., 352, § 348.
Charges given for the plaintiff, Nos. 1 and 2, are argumentative, and might have been refused on that account, but that they were given is not reversible error.— Bancroft v. Otis, 91 Ala. 279, 8 So. Rep. 286; Waxelbaum v. Bell, 91 Ala. 331, 8 So. Rep. 571. Charge No. 3 given for plaintiff' asserts a correct proposition. As there was some conflict in the evidence, charges Nos. -1 and 2, asked by defendant and refused, were properly refused. Charge No. 3 requested by defendant and refused, ignores the consideration of any willful, wanton or intentional negligence on the part of the defendant’s employés, and was properly refused. If the evidence for the defendant, as to the alleged negligence of the engineer, conductor
Charges Nos. 5 and 6, requested by defendant, ignore the consideration by the jury of any gross or wanton negligence by defendant’s employés in charge of the train, and in making the slightest degree of negligence on the part of the plaintiff, the legal equivalent of that degree of negligence which contributed proximately to the injury.
We find no reversible error in the record, and the judgment of the circuit court must be affirmed.