On a subsequent day of the term an application was made by the appellant for a rehearing, to which the following response was made:
STONE, J.
— We are not able to find any errors in the rulings of the court, of which appellant can complain. If it be true that the verdict of the jury was unsustained by the testimony, that is a wrong which we have no power to redress. The presiding judge in the primary court alone had power to grant a new trial, and that is the only method known to our system, by which to obtain relief from a verdict, unsupported *248by testimony. And from his ruling, on such motion, no appeal lies to this court. The theory of our system is, that juries, as their oaths require them to do, will fairly and impartially weigh the testimony, and that their verdict shall truly represent the convictions produced on their minds by the evidence, construed in reference to the law, as given them in charge by the court. If a verdict be rendered on any other principle than this, it is done in palpable disregard of a solemn oath; and there is no more sacred duty resting on the presiding judge, than to set aside a verdict which is rendered in palpable disregard of the evidence, or of the charge of the court.
Cases may be found, in which it was held that when the owner of the animal killed permitted it to run at large, and trespass on the track of the railroad, he thereby precluded himself from recovering for the injury done. But in all those eases, the statutes of the States in which the rulings were made, required stock to be kept within inclosure, and not allowed to run at large. — Munger v. Tonawanda R. R. Co., 4 N. Y. 349; Jackson v. R. & B. Railroad Co., 25 Vt. 150; P. C. & St. L. R'w'y Co. v. Stuart, 71 Ind. 500; Price v. N. J. R. R. & T. Co., 31 N, J. (Law) 229; s. c. 32 It. 19.- We have ruled differently. — S. & N. R. R. Co. v. Williams, 65 Ala. 74; Ala. Gt. Southern R. R. Co. v. McAlpine, 71 Ala. 545.
The application for a rehearing must be denied.
STONE, J.
— 1. The circuit court did not err in giving the' two charges requested by appellee. They each assert correct principles of law. — M. & M. Raihoay Co. v. Blakely, 59 Ala. 471; L. & N. R. R. Co. v. Jones, 56 Ala. 507. And though, it is possible, they are abstract and have a tendency to mislead, yet this furnishes no ground for reversing the judgment. The appellant should have requested explanatory charges “by which the objectionable tendency could have been averted and healed.” McCrary v. Rash, 60 Ala. 374; Smith v. Fellows, 58 Ala. 467; Durr v. Jackson, 59 Ala. 203.
2. Charges numbered 1 and 2, requested by the appellant, and refused by the court, were properly refused. They each confine the diligence to be exercised by the persons, in charge of the train, for the purpose of avoiding the danger, and arresting the injury to the horse, to the time'when the engineer perceived it on the track. If this were the correct rule, the persons in charge of the train need have exercised no diligence, but may have conducted the train in a negligent manner up to the time of perceiving the horse on the track. As was said by this court in the case of S. & N. R. R. Co. v. Jones, 56 Ala. 507: “The engineer, if he saw the ox in dangerous proximity to the track, and under circumstances indicating danger of its getting on the track, should have taken steps promptly to frighten him away; or, if need be, should have arrested the motion of his train, if possible, rather than incur the hazard of destroying another’s property.”
We find no error in the record and the judgment is affirmed.