64 So. 564 | Ala. | 1914
Plaintiff claimed damages for an injury suffered under the wheels of one of defendant’s cars. On the issue made by defendant’s denial of any negligence or wanton wrong in the premises, a jury found for the defendant, and plaintiff .appeals.
Defendant had three tracks which lay across a public road in the town of Shelby. Plaintiff, a boy about nine years of age, and six companions, were going home from school. As they approached the railroad, they found
Defendant’s version of what occurred, supported by the great weight of the testimony, including that of four of plaintiff’s school fellows, Avas that he, along with the rest, crossed the tracks in safety and had proceeded some distance along the public road, which turned sharply to the right after crossing the railroad, when a part of the train, to wit, four cars pushed by the locomotive, came back along the middle track, passing plaintiff, who Avas then Avell away from the crossing, whereupon plaintiff, undertaking to “ride the train,” fell under the car, where his foot Avas crushed. There was nothing to support an inference that any of the train crew knew anything of the plaintiff’s effort to “ride the train-.”
The trial court gave the general charge for defendant as to count A of the complaint, and that ruling furnishes the chief point of attack upon, the resulting verdict and judgment. This count ascribed plaintiff’s injury to the wanton act of some servant or agent of the defendant. It avers that plaintiff was crossing a track
Plaintiff makes an effort to show that the jury might have found under the evidence that he was injured while crossing the track at a point other than the public road crossing. His own testimony unequivocally excludes any such conclusion, as does that offered by the defendant. As for the witnesses Clarence Ware and Hutsey Finley, from whose testimony plaintiff culls an expression or two in support of a composite finding in accordance with his theory of the case, we are entirely satisfied, not only that the general effect of their
The proposition that the court erred in charging the jury that a child may become a trespasser is without merit. On that version of the facts which found support in defendant’s testimony, plaintiff, though of immature years and judgment, was clearly a trespasser.—
In view of the two clearly defined, irreconcilable, and mutually exclusive tendencies of the evidence offered pro and con, the statement that the defendant was under no duty to keep a lookout for plaintiff upon the track except at the public road crossing was a mere abstraction. Even if it might have been erroneous in its application to plaintiff’s case, had he been injured while walking along or across defendant’s track at a place other than the crossing, in the case actually set before the jury by the evidence and the court’s repeated limitation of the inquiry to what occurred at the crossing as the only debatable issue, this statement of the law was of no benefit to defendant, though defendant insisted upon it; it worked no harm to plaintiff, though he objected to it. It was not reversible error. The duty in such cases as the charge given seems to have had in contemplation is elaborately considered in B. R. L. & B. Co. v. Jones, 153 Ala. 157, 45 South. 177, where many cases are cited.
There was no error in giving charge G requested by the defendant. It stated a proposition of law fundamentally correct and necessarily applicable in every case. ■ If, in order to give point to appellant’s argument against the charge, it be construed with special reference to section 5473 of the Code, which imposes certain duties on 'the operators of railroad trains at public road crossings, at regular stations and stopping places, -or when entering into, or while moving within, or passing through, any village, town, or city, and section 5476, which puts upon them the burden of showing a compliance with section 5473 and that there was no negli
Other charges given on defendant’s request, and the overruling of the motion for a new trial, in view of what has been said, do not require separate treatment.
Affirmed.