95 Ala. 152 | Ala. | 1891
The general affirmative charge was asked by the defendant below and refused. The Only exception reserved goes to that action of the trial court. The correctness of the ruling confessedly depends upon whether any evidence was adduced in conflict with, or which afforded an inference inconsistent with, the testimony of the engineer, that the immediate locality of the casualty was so enveloped in a dense wall of fog as that it was impossible to see plaintiff’s mules until too near them to avoid colliding with and killing them. This fog-wall, he says, arose from the bed of a creek along which was timber, was scarce an hundred feet thick, and extended across the track. This testimony is not, we apprehend, unreasonable in itself; but, if so, the jury would have been free to disregard it, under the charge requested and refused. So, too, with respect to supposed contradictions in other parts of this witness’ testimony; the giving of the, charge asked would not have
Another matter relied on to sustain tbe court’s action is tbe testimony of tbe fireman. This witness testified as to the fog only this: “I can not say there was any fog tbat night.” This could mean no more than tbat tbe witness did not know at tbe time of the trial whether there was a fog at tbe time and place inquired about. How- this ignorance arose, why be is unable to say tbat there was a fog, be does not undertake to inform tbe jury, as we construe bis testi
There is no evidence in this record tbat any of tbe mules were stricken elsewhere than at tbe point which tbe engineer swears was enveloped in tbe fog. No indications of a collision at any other point are deposed to. All tbe animals which were killed outright, were found at tbat place. Several hours afterwards, one of tbe mules which bad been wounded in tbe collision was found on tbe track at another place a short distance from this, in tbe direction from which the train came. Tbat it bad gone to tbat place after tbe train passed, is manifest from tbe fact tbat it was found on tbe track, where it could not have remained and lived while tbe train was passing; and tbat it might have come from tbe place where tbe other mules were killed is demonstrated by tbe fact tbat it was still able to move about and was driven off tbe road. In tbe absence of any evidence of a collision at tbe point where this mule was found, it would be unreasonable to allow any inference under tbe circumstances to be drawn tbat it was stricken at tbat place. This fact, like tbe other circumstances to which we have alluded —and this and those others constitute all tbe evidence relied on to afford an inference inconsistent with tbe evidence of tbe engineer — affords nothing contradictory of, or inconsistent with tbe evidence for tbe defendant, which went to show tbat its employes were without fault in respect of tbe occurrence; and tbe jury should have been instructed, a3 requested, that if they believed all tbe evidence in tbe case they should find for the defendant.
Reversed and remanded.