Mobile & Birmingham Railroad v. Ladd

92 Ala. 287 | Ala. | 1890

McCLELLAN, J.

Whether the facts that the moon rose before the accident complained of and that it was a full moon were relevant to any issue in the case is an immaterial inquiry on this appeal. They were offered and admitted in rebuttal of evidence adduced by defendant below to the effect that “it was a very dark night.” If evidence as to the moon’s phase and the hour at which it rose that night was irrelevant, so- also-was this testimony on the part of defendant; and it is never erroneous to receive irrelevant evidence to rebut evidence of like kind offered by the opposite party.—Ford v. State, 71 Ala. 385; Gandy v. State, 86 Ala. 20; Sharp v. Hall, Ib. 110; Morgan v. State, 88 Ala. 223.

2. It may be that the time at which the moon rose on the night in question was a matter of judicial knowledge, and hence that the presiding judge, informing himself by reference to standard almanacs, should have charged the jury as to the fact; but, if the introduction of the almanac before the jury was erroneous, it was without injury to the defendant, since the presumption is that the time of the rising of the moon was correctly stated therein, and that the jury found accordingly. See Munshower v. State, 55 Md. 11; State v. Morris, 47 Conn. 179; Sisson v. Railroad Co., 14 Mich. 497.

3. The engineer testified that the ox, when first seen by him, was standing about ten yards from the track, but immediately ran upon the track and stopped; that he put on brakes and sounded the cattle-alarm as soon as it got on the track, but it remained standing on the track until struck by the engine and killed — the distance between the engine and the animal when it first got on the track not being sufficient to stop the train by any means known to skillful engineers. Per contra, the plaintiff testified that he was within an half mile of the accident when it occurred; that his attention was directed to the train for the purpose of ascertaining whether it gave a signal indicating that it would stop at a station near by, as he was expecting some one by that train, and that the whistle ■was not sounded at all. He further testified that, upon visit-ling the scene of the accident, he saw tracks, etc., indicating ■ that the ox had run some distance along the track in front of the engine before it was struck, and the injuries inilicted were such as would naturally have resulted from being run down.

It was for the jury to determine whether they would believe •the one or the other of these witnesses. If they believed the facts to be those which plaintiff’s testimony tended to support, very clearly they would have been justified in the conclusion ■that the defendant’s employes were negligent in not sounding •the cattle-alarm after they saw the animal on, and running ¡along, the track. The general charge requested for defendant would have deprived them of the right to consider this aspect of the evidence, and to reach this conclusion. It was manifestly well refused.—Beard v. Horton, 86 Ala. 202; Paden & Co. v. Bellenqer & Ralls, 87 Ala. 575; Sublett v. Hodges, 88 Ala. 491.

The negligence counted on is alleged to have consisted in the failure of the engineer “to reverse the engine,, blow the whistle, or use the proper diligence and means at his command to avoid the accident.” Manifestly this averment' does not predicate negligence of any failure on the part of the engineer to sooner see the animal, but solely of omissions of duty in the handling of his engine after discovery of the ox; the accident, in other words, is not laid as a result of a failure to discover as soon as discovery ought to have been made, but in a failure to act after discovery, whether timely made or not. Upon this state of averment, no recovery could be had on account of the engineer’s failure to see the animal before the time it appears from the testimony he did see it — the pleader ¡having undertaken to specify the particular acts of negligence ¡upon which he proposed to rest defendant’s liability, he could not rely on or bring to his aid other acts or omissions not so specified.—A. G. S. R. R. Co. v. Thomas, 83 Ala. 343. The second charge requested by the defendant was a sound exposition of this doctrine as applied to the case. It did not assume any fact to be proved with respect to the time of the discovery ■of the animal by the engineer, but left that matter to the jury —the time of discovery was hypothesized as such “as was ■shown by the evidence.” It was not based upon a part of the evidence to the exclusion of other parts bearing on the point, but all the evidence is necessarily referred to the jury when the fact to be ascertained is made determinable as the same is shown by the testimony. There was evidence as to the time at which the ox was seen; the charge was therefore not abstract. We can not conceive that an instruction like this, denying a right of recovery for negligence not alleged in the complaint, could have misled the jury as to defendant’s liability for negligence which is alleged and specified. The charge was free from infirmity of any kind, we think, and should have been given.

The bill of exceptions does not show that the charges requested by defendant were in writing; but following the bill of exceptions are copies of said charges with copies of the presiding judge’s refusal to give them written across their faces, and a certificate by the clerk of their filing in his office. This is sufficient to present them for our consideration, and obviates the difficulty arising from the failure of the bill of exceptions to affirm they were in writing.—Mobile Savings Bank v. Fry, 69 Ala. 348.

For the error committed in refusing the second charge requested by defendant, the judgment of the Circuit Court is reversed, and the. cause remanded.