71 So. 682 | Ala. | 1916
The trial court affirmatively instructed the jury that the plaintiff could not recover, unless they were reasonably satisfied from the evidence that the engine collided with the plaintiff’s horse.
This statement, standing alone, unquestionably possessed misleading tendencies, if it was not wholly erroneous; but taken in connection with other parts of the oral charge, and with the written requested charges given at the defendant’s request, the excerpt is cured of its misleading tendencies, and of error, if such there be, inherent when it is considered alone. For example, the court in its oral charge instructed the jury that:
The court also instructed the jury, at the request of the defendant, as follows: “(3) The court charges you that, unless you are reasonably satisfied from the evidence that plaintiff’s horse was injured by being struck by defendant’s engine, you must find for the defendant.
“(4) The court charges you that, if the defendant’s engine did not strike plaintiff’s horse, the burden of proof does not rest upon the defendant to acquit itself of negligence in and about the injuring of plaintiff’s horse.
“ (5) The court charges the jury that, unless you are reasonably satisfied by the evidence that defendant’s train did come in actual physical contact with the plaintiff’s horse, there would be no duty on defendant to exonerate itself of negligence.”
It will be noticed that the statute says that the defendant must show that there was no negligence on the part of the company or of its agents. The phrase “all the evidence,” standing alone, of course possessed misleading tendencies; but it could have been explained by requested charges — and in some repects it was so cured.
Affirmed.