40 So. 512 | Ala. | 1906
The charges requested by defendant should have been given. — Louisville & Nashville Railroad Co. v. Brinkerhoff, 119 Ala. 606, 24 South. 892.
Reversed and remanded..
ON REHEARING.
The late Chief Justice was not entirely satisfied with the above opinion, nor with his opinion in L. & N. R. R. Co. v. Brinkerhoff, 119 Ala. 606, 24 South. 892, in so far as it held the fifth charge, requested by the defendant, in that case should have been given. XÍpon his own motion he caused this case to be placed on the rehearing docket for further consideration by the full court. This opinion expresses the views of all the judges, and is written after a conclusion first reached in general conference.
The evidence was conflicting as to the distance the horse had run upon or along the track in front of the train, and inferences might be drawn from the whole evidence which would authorize a recovery by the plaintiff, while other inferences that might be drawn, and some positive evidence, if believed, would entitle the defendant to a verdict. The evidence of defendant's witnesses tended' to support the hypotheses of the first charge which it requested, and which was refused. The charge was not, therefore, abstract. It asserted a correct proposition of law, based upon a finding of the facts as hypothesized and should have been given. If the jury found the facts as postulated, in the charge, the accident was unavoidable.- — Choate v. Sou. Ry., 119 Ala. 611, 24 South. 373 ; Anderson v. Birmingham Mineral Ry. Co., 109 Ala. 128, 19 South. 519.
The second charge refused to the defendant would have required a verdict in its favor upon a finding mere
A comparison of the tAvo charges asked by the defendant beloAV Avill show the essential difference betAveen. them; the first liaA'ing been framed on correct legal prin-.
Reversed and remanded.