Mobile & Ohio R. R. v. Thomas

42 Ala. 672 | Ala. | 1868

A. J. WALKER, C. J.

The first ground of demurrer amounts to nothing more than a general demurrer, and there could be no error in overruling it. — Robbins v. Mendenhall, 35 Ala. 722; Helvenstein v. Higgason, ib. 259; Burns v. Mayor of Mobile, 34 Ala. 485.

The complaint is not obnoxious to the objection for uncertainty made by the second and seventh assignments of demurrer. It was not incumbent upon the plaintiff to specify the place where the injury alleged was sustained, and, therefore, the third assignment of demurrer was not well taken.

The sixth assignment of demurrer is as follows: “ It appears that plaintiff was an employee of the company, and the matters alleged do not make such a case as will charge defendant.” The specified fault imputed by the complaint in this assignment, is, that the plaintiff was an employee of the company. Forbearing verbal criticism, we understand the objection to raise the question, whether the condition of employee of the defendant corporation, at the time of the alleged injury averred by the plaintiff, is a legal reason why liability should not result from the cause alleged in the complaint. The cause, from which the defendant’s liability is attempted to be deduced in the complaint, is that the plaintiff was injured by an engine’s running off the track of defendant’s road, and that the engine ran off the track, and the injury was suffered “ because of the wrong and gross negligence of defendant in running on said road such engine, which was out of order and unsafe, and unfit to be in said business, and which, but for the want of proper care and diligence, would have been known to defendant, and all of which was unknown to plaintiff.” The injury is, in this allegation, attributed to the gross negligence of the defendant in running an engine out of order, unsafe, and unfit, and it is averred that the condition and character of the engine were unknown to the plaintiff, and would have been known to the defendant but for the want of proper care and diligence. There can be no doubt that a railroad company is responsible for injuries to their servants resulting from its negligence. If the defendant was negligent in putting the engine upon the track, and if, in addition thereto, it would, but for the want of proper care and diligence, have known the. deficiency of the engine, they are liable.— Williams v. Taylor, 4 Porter, 234; Walker v. Bolling, 22 Ala. 294; Cook & Scott v. Parham, 24 Ala. 21; Perry v. Marsh, 25 Ala. 659. The case of Williams v. Taylor, supra, lays down a rule which would make the defendant liable only where the negligence was gross. The two later cases of Walker v. Bolling, and Cook & Scott v. Parham, exact, for the absolution of the master from liability, only ordinary diligence. The latter rule is the true one. The courts are now inclined to abandon the distinction between negligence, or want of reasonable care and diligence, and gross negligence, as too fine for practical application. — 2 Redfield on Bailways, 201, § 211. The complaint seems to have been framed to meet the more stringent rule. The complaint was not obnoxious to any of the objections made in the assignments of grounds of demurrer. See Noyes v. Smith, 28 Vermont, 59 ; Buzzell v. Laconia Manufacturing Co., 48 Maine, 113 ; Bryon v. N. Y. S. P. T. Co., 26, Barbour, 39.

The court gave, at the request of the plaintiff, nine several charges, and gave one charge besides, and imposed a qualification upon a charge given upon the defendant’s request, and refused three charges requested by the defendant, which are numbered two, three and four. These fourteen rulings we proceed to consider separately in the order in which they are named above.

1. The first charge given was as follows : “ It was • the duty of the defendant to have on the road suitable and proper engines, and to keep them in such condition, that unusual risks would not attend those who were employed to perform service on them ; and if they did not in this case have such an engine, and the plaintiff was ignorant of any defect in the engine, the burden is on the defendant to show that they used due caution and diligence in the matter.”

The defendant was liable to its servants for injuries resulting from its negligence. When passengers on a railroad are injured in consequence of a defect in any instrument employed by it, it is a presumption, disputable but not conclusive, that the injury resulted from negligence. 2 Redfield on Railways, 190, § 11; Hand S. R. R. Co. v. Higgins, 5 Am. Law Reg. 715 ; S. C., Redfield on Railways, 533, § 131; S. C., 36 Mo. 418 ; Edgerton v. N. Y. & H. R. Co., 35 Barb. 193 ; Curtis v. R. & S. R. Co., 18 N. Y. 534.

But the same principle does not prevail in reference to servants of a railroad, as we shall see. ' The established doctrine of the law unquestionably is, that the onus of proving negligence is upon the injured servant. — 2 Redfield on Railways, 200, § 15 ; Perkins v. E. R. Co. & B. M. R. Co., 29 Maine, 307 ; S. C., 1 Am. Railway Cases, 144.

Our own decisions in M. & O. R. Co. v. Jarboe, mss., (1 Div., 30th April, 1868,) and Steel & Burgess v. Townsend, 37 Ala. 247, are not opposed to that proposition. In those cases the question was, whether a loss of goods, or injury to them, was within an exception to a contract of affreightment ; and it was held that the onus of proving that the loss or injury came within the exception was upon the common carrier ; that it did not fall within the exception, unless due care and diligence had been used, and that therefore the onus of proving such care and diligence was upon the carrier.

The charge here, however, was not that the onus of proof of care and diligence was upon the defendant, but that it was cast upon it by a failure to have a suitable and proper engine. It bases the proposition that the onus of proof is shifted to the defendant upon the assumption of its absolute duty to have a suitable and proper engine, as contradistingushed from its duty to use due and proper care and diligence to have such engine. Does the law impose upon a railroad corporation such absolute duty to its servants, or does it only impose the duty of using due diligence to have a suitable and proper engine ? If the former question be answered in the affirmative, then the defendant guarantees absolutely to its servants the proper quality of all its engines, and it is liable, notwithstanding the utmost care and diligence is used. We can perceive no reason to support the conclusion, that the badness of the engine could create the presumption of negligence, and have the effect of shifting the onus of proof from the servant to the carrier. If the assumption that it was the absolute duty of the defendant to have a suitable and proper engine be correct, then the court has made an unmerited concession to the defendant in only deducing the inference that the onus of proof was changed. Upon that assumption he should have drawn the inference of an unqualified liability, and in that view the charge would be too favorable to the defendant, and he would not object to it.

Error, therefore, in the charge is shown, and shown only by maintaining the proposition that the defendant’s obligation or duty to its servants was discharged by the exercise of due and proper diligence to have and keep suitable and proper engines. To impose upon the master a liability for injuries to the servant resulting from causes, against which due care and diligence fail to provide, absolves the servant from the risks necessarily incident to the business in which, he is engaged. There are perils incident to the servant’s employment against which caution and prudence can not perfectly guard. Those perils and risks the servant must be presumed to know as well as the master, and when he contracts, he must be understood to assume them and stipulate for a compensation apportioned thereto. It is in this that the relation of a railroad corporation to passengers differs from its relation to servants. The principle has been so often declared both in England and in this country, that it has ceased to be disputable. — Priestley v. Fowler, 3 M. & W. 1. The leading case upon the subject is in reference to the liability of a master to his servant for an injury received during his transportation upon the master’s wagon. Lord Abinger, in deciding the case, omitting a qualification which seems to have been since engrafted upon the rule, said: “ No duty can be implied upon the part of the master to cause the servant to be safely and securely carried, or to make the master liable for damage to the servant, arising from any vice or imperfection, unknown to the master in the carriage or in the mode of loading and conducting it.” The later English cases of Seymour v. Maddox, 5 English Law & Eq. 265, and Cough v. Steel, 24 ib., are to the same effect. In the latter of those cases it was decided that the owner of a ship was under no obligation to a seaman serving on board for the seaworthiness of the vessel, and was not liable to the seaman in the absence of any knowledge of the defect or personal blame of the master. Marshall v. Stewart, 33 English Law & Eq. 1, distinctly recognises neglect as the ground. In the recent case of Wiggett v. Fox, 36 English Law & Eq. 486, we infer, that the doctrine in Priestley v. Foioler, supra, as above stated, was recognized.

In America, the earliest case touching the subject is Munday v. R. Co., 1 McMullen, 386, where the liability of a railroad corporation to a servant for an injury received when on its cars was denied, unless there was fault in the master. In Farwell v. R. & W. R. Corporation, 2 Metcalf, 49, which is the leading American case in reference to the relation of railroads to their servants, the precise question of the liability of a railroad to its servant for an injury arising from a defective locomotive, did not arise, and Chief Justice Shaw, who delivered the opinion, withheld any expression upon the subject. In the later Massachusetts case of Seaver v. Bond M. R., 14 Gray, 466, the question arose, and was decided in a per curiam by a court over which the same learned judge presided. The court below had ruled, that a railroad was not responsible for an injury to a servant, resulting from a defect in a locomotive, unless there was a want of due and reasonable care to provide a safe and suitable engine. The appellate court affirmed, remarking, that the instructions to the jury were sufficiently favorable to the plaintiff. — Bedfield on Railways, 530, § 10. This case arrays the authority of the highest court of Massachusetts, including the great name of Chief Justice Shaw, in favor of the proposition that the railroad is not liable in such case, unless there was a want of reasonable care.

In Buzzell v. Laconia Manufacturing Co., 48 Maine, 113, it was ruled (a servant having been injured in consequence of a defective bridge,) that the master’s liability depended upon negligence and want of care, and the declaration was held defective for lack of an averment that the insufficiency of the bridge was known to the defendant, or would have been known but for the want of proper care and diligence. In Noyes v. Smith & Lee, 28 Yermont, 59, there was an injury to an engineer resulting from defect in an engine. It was decided that there does not arise from the relation of master and servant the dffiy of furnishing an engine, well constructed and safe to the engineer, and that when there was no actual notice of defects in an engine, and no personal blame exists on the part of the master, there is no implied obligation on his part that the engine is free from defect, or that it can safely be used by the servant. See, also, to the same effect, Hard v. V. & C. R. Co., 32 Yermont, 473. In Keegan v. W. R. Corporation, 4 Selden, 175, the liability for injury to a servant caused by a fault in an engine was placed upon the established fact of negligence and misfeasance, and the distinction herein before stated between passengers and servants is declared. There are a number of other decisions in New York to the same effect. Wright v. N. Y. C. R. Co., 25 N. Y. 562, reviewing the decision of the supreme court, reported in 28 Barbour, 80, refers the master’s liability to his misconduct or negligence, and in relation to defects of machinery, says, knowledge must be brought home to the master, and proof given that lie was ignorant of the same through his own negligence and want of proper care; in other words, it must be shown that he either knew or ought to have known the defect which caused the injury. — See, also, Bryon v. N. Y. Lt. P. S. Co., 26 Barb. 89. In Ohio, the rule is that the master is liable, on the ground of neglect or want of care and diligence. — McGastrick v. Wason, 4 Ohio St. 566, 575. In Pennsylvania, the proposition that there is a duty or implied warranty of the master to the servant of the suitableness and safety of the instruments furnished, is denied. — Ryan v. C. V. R., 23 Penn. 384. And lastly, this court itself has decided the question in hand; in Perry v. Marsh, 25 Ala. 659, it announced its opinion as follows: “ In ordinary cases, where a workman is employed to do a dangerous job, or to work in a service of peril, if the danger belongs to the work he undertakes, or the service in which he engages, he will be held to all the risks which belong either to the one or the other; but where there is no danger in the work or service by itself, and the peril grows out of extrinsic causes, or circumstances, which can not be discovered by the use of ordinary precaution and prudence, the employer would be answerable precisely as a third person, if the injury or loss was occasioned by his neglect or want of care.” The perils of service are in this extract divided into two classes, for one of which the master is not responsible at all, while for the other class in which the peril from a defective engine may be reckoned, he is responsible in the absence of ordinary precaution and prudence. This decision is also supported by the statement of the law in the older case of Walker v. Bolling, 22 Ala. 294.

We attain the following conclusions, from the foregoing-collation of authorities : It is not an absolute duty of a railroad to furnish a suitable and safe engine. It is its duty to use due care and diligence to furnish such engine. When an injury has occurred to a servant in consequence of a defect in an engine, the burden is upon the plaintiff to show negligence, or the want of care and diligence in the defendant corporation. The onus of proof is not shifted to the defendant, by the fact that an injury has resulted from the defect. The first charge being inconsistent with these propositions, is erroneous.

The proposition of the second charge is, that if the plaintiff’s injury was caused by a defect in the engine, not known to him, of which defendant’s servants charged with the duty of receiving notice of such defects, and remedying the same previously, had notice, and if such servants being so notified had previously repaired the engine, but failed to remedy the particular defect above stated, the defendant would be liable. This charge is obviously correct in assuming that notice to the servants, who were agents of the defendant to receive notice of defects in the engine, would affect it with notice. If it designated one or more servants to receive such notice for itself upon an established principle of law, notice within the scope of the agency to the agent would be equivalent to notice to the principal.— Smith v. Oliver, 31 Ala. 39; Wiley, Banks & Co. v. Knight, 27 Ala. 336 ; Mundine v. Pitts, 14 Ala. 84. The propriety of this portion of the charge is also questioned in reference to the allegations of the complaint. It is contended, that under the complaint, the defendant can only be charged on account of a neglect, which consisted of a failure to remedy a defect which it would have known, hutfor the want of proper care and diligence, and not on aceouut of negligence consisting in a failure to remedy a defect of which it was legally informed. This question we leave undecided, because we doubt in reference to it, and on another trial it can be easily avoided by adding another count to the complaint.

Another objection made to this charge, is, that it subjects the defendant to liability for a failure of its servants, who repaired the engine to remedy the defect. The inference of the defendant’s liability from such failure of its servant can only be sustained by the maintenance of the two propositions, that negligence of the servant is a legal conclusion from such failure, and that the master is responsible for the. negligence of the servant. If the failure to remedy the defect does not conclusively demonstrate negligence, the proposition of the charge is not correct. If it does demonstrate negligence, still, the proposition of the charge is erroneous, unless the master is answerable for the servant’s negligence which has caused an injury to another servant. We consider the charge incorrect in both respects.

An artisan charged with a duty of repairing within the scope of his handicraft, is not conclusively shown to have been negligent by a failure to remedy some defect specifically pointed out to him. He may have attempted to remedy it, and exhausted the skill and care of his art, and yet from some defect in material, or some other cause, beyond the detection of ordinary caution and care, may have failed to altogether cure the defect. The question of negligence in the mechanic, if material at all, was for the jury, upon the indeterminate fact presented by the hypothesis of the charge.

The question remains, whether, if the mechanic charged with repairing the engine was negligent in failing to remedy the defect, the defendant is liable for the injury alleged to have resulted therefrom to the plaintiff. This question will arise upon another trial, and must be decided. Is a railroad responsible to one of its servants, employed on a locomotive for an injury occasioned by the negligence of others employed in its machine shop ?

This court has twice decided that, “ when two persons are employed by a common employer in the same general business, and one of them is injured by the negligence of the other, the employer is not responsible therefor.”— Cook & Scott v. Parham, 24 Ala. 21 ; Walker v. Bolling, 22 Ala. 294. Of this doctrine it is said in the former case, that “ it is too well established, both upon English and American authority, to be now controverted.’ ’ The English authorities, without exception, support this ruling, and Judge Bedfield, in whose mind some difficulty as to its justice and policy was produced by the reasoning of a Scotch judge, withdraws serious objection to it if taken with the qualification prescribed in Wiggett v. Fox, 86 Eng. Law & Eq. 486; 1 Redfield on Railways, 525, § 5, No. 15. That qualification is, that the master is answerable that the servants shall be persons of ordinary skill and care. That qualification has been twice announced in this state. The precise shape of its statement is, that it is the master’s duty to use due care in procuring competent servants or officers,' and lie is responsible for a failure to discharge that duty. — Cook v. Parham, 24 Ala. 21; Walker v. Bolling, 22 Ala. 294. With this qualification the rule above stated, which prevails in England, must be regarded as established in this State. This rule is supported by all the English cases, and all the American, with a few exceptions.

Finding the question a res adjudícala in this court, and the rule thus supported by authority, we might here stop the discussion of the- subject, but it will perhaps be more satisfactory to notice the meagre array of adverse authority. In Scotland, the rule is the opposite of that which prevails in England. That rule imposes upon the master a duty to his servant, not only of furnishing “good and sufficient machinery”, but of having “ all acts by others, whom he employs, done properly and carefully”. — -See Dixon v. Ranken, in the Court of Quarter Sessions, i American Railway Cases, 569. In point of authority, we must prefer the adjudications of the English to the Scotch courts, if their reasons were in equilibrium; but on account of the reasoning and principle, which underlie the English rule, we regard it as much more consonant with justice and public policy than the Scotch rule, which is built up upon the idea of a partial absolution of a servant from the risks incident, in the very nature of things, to his employment. In Ohio and Kentucky, the courts have engrafted upon the rule prevalent in England, and in most of our States an exception of the cases where the injured servant was subordinate in grade to, and subject to the authority of the servant from whose negligence the injury resulted. — L. M. R. Co v. Stevens, 20 Ohio, 415; L. & N. R. R. Co. v. Collins, 5 American Law Reg. 265; S. C, 1 Redfield on Railways,. 527, n. Judge Redfield, in a note to his work on Railways, (1 Vol. 532), remarks in reference to that rule, that he should regard it as more salutary than the present, but admits that the general current of authority is in the opposite direction; yet, in a previous note, p. 525, the learned author had said that there seemed to be no serious objection to the English rule, with the qualification stated in Wiggett v. Fox, 36 E. L. & E. 486.

In Indiana, the rule has been adopted, that the railroad is liable to a servant for an injury by his fellow servant, when they are employed in different departments.— Gillenwater v. M. & I. R. Co., 5 Ind. (Post) 339; Fitzpatrick v. N. A. & S. R. Co., 7 Ind. (Post) 436.

In Wisconsin, the distinctions made in Ohio, Kentucky and Indiana, are repudiated, and the court boldly confiding in its own convictions with the encouragement given by the Scotch authority, applies the doctrine of respondeat superior to the railroad company, one of whose servants had been injured by the negligence of another. — Chamberlain v. M. & M. R. R. Co., 11 Wis. 238. Sendder v. Woodbridge, Kelly’s (Ga.) R. 195, is not authority against the English rule, which, as we have seen, is adopted in. this State. On the contrary, it recognises the rule, but establishes, upon principles of humanity and of policy peculiar to the state of slavery, an exception of cases of injury to slaves.

The proposition, which bases the liability on the superiority of grade of the negligent servant, and the subordination to him of the injured servant, is, in our judgment, not founded in adequate reason. It can make no difference to the breakman whether he is injured by the carelessness of another breakman, in some remote part of the train, or of the engineer or conductor, nor can it make any difference whether a fireman is injured by the negligence of the engineer who directs him, or of the machinist who is charged with fitting the engine for the road. Protection is equally difficult to the injured party in all of the cases. There can be no reason for distinction in the nature of the employer’s duty, dependent upon the relation of the injured and negligent parties. The employer’s obligation to his servant in reference to fellow servants must be the same in all the cases. If the corporation is regarded by the law as present, and doing what its servant does in one case, it should be so regarded in every other; qui facit per alium facit per se, can be applied with no greater propriety in one case than another.

The maxim, respondeat superior, applied in favor of a servant injured by a fellow servant in Priestly v. Fowler, supra, is- shown to be unreasonable by an irresistible array of its absurd consequences. We need not reproduce them. The reasoning is conclusive, without the aid of the reductio ad absurdum. The servant pays nothing for his transportation. He is compensated for his service according to an agreed estimate of its value, in which the element of its perils is considered. The master can do nothing more for the safety of himself, or his family and property, than to be careful to select competent and fit servants. To inflict a penalty upon him for not doing more for his servant, is unreasonable. As long as human agencies shall be imperfect, accidents must be incident to every business requiring caution and diligence. When the master has selected competent and fit agencies, those negiigencies are but risks of the business, which the servant himself must take, as the master is bound to do. After the employer has furnished competent and fit employees, the prevention of negligence on the part of any one of them is certainly as much within the power of the others as in that of the employer. Why then should the employer be responsible to one for the negligence of another ?

Besides, there is a principle of public policy which underlies the rule. The tendency of the rule is to quicken the zeal and vigilance of servants, to prevent the negligence of their fellow servants, and avoid the consequences of it. The doctrine of respondeat superior rests upon principles of public policy which have no application here. Indeed, the rule of policy is reversed. The safety of the public, which must trust to the employees of railroads, is best consulted by impressing upon each, that his own interest is inseparably blended with the safety of the passengers; and he is best stimulated to the utmost effort to prevent negligence in others, and obviate their destructive consequences by the knowledge that, for injury sustained, he has no redress save against the wrong doer. He would be an unwise guardian of the public weal, who would relinquish any guaranty, however slight, of the fidelity and diligence of those agents, who, beyond the sight of their employers, guide the perilous and powerful machinery of railroad transportation. It is impossible for those who represent the legal personality of a corporation to otherwise secure complete and safe repairs of engines than through the agency of. competent and proper mechanics. If it has employed the agency of such mechanics in that duty, and no personal blame attaches to it, it will not be responsible, if a defect not remedied in consequence of the negligence of such mechanic shall have caused an injury to another servant. Without commenting upon them, we refer to the authorities collected by Judge Redfield, in his work on Railways, vol. 1, § 8, pp. 520, 548, and in the briefs of counsel.

We conclude that the second charge was erroneous, in deducing the liability of the defendant from the failure of its servants to effectually repair the engine and remedy a known defect, although there may have been no want of proper care and diligence on the part of the defendant.

3. The third charge given upon the plaintiff’s request lays down alternative hypotheses, upon each of which it asserts the defendant’s liability. The charge upon the former hypothesis is, that if the plaintiff was by reason of a defect in the engine, neither -known to him nor open to ordinary observation, exposed to unusual risks, and received the injuries complained of, and the defendant might have known of such defect by ordinary care, then the defendant is liable. Whether this charge, as an abstract proposition, would be correct, if there were no other facts in the case thaii those which it brings to view, it is not necessary for us to decide. A charge in a suit on a promissory note that the defendant is liable, if he executed the note, may be very correct if there is no other evidence, but it would be very incorrect if there were evidence conducing to show a payment. If the charge here were otherwise correct, it is fatally defective, because it excludes from the jury entirely the defensive matter in the case. If the engine was defective, and it was placed in the hands of competent and fit mechanics to repair, and the use of the engine, without a cure of the defect, when the plaintiff was injured, was the result of the negligence of such mechanics, the defendant would not be liable. The court could not properly take from the jury the consideration of the defense set up, in reference to which there was evidence. For a like reason the latter proposition of the charge is erroneous.

4. The fourth charge is erroneous for reasons obvious from our comments upon the third.

5. The fifth charge given made notice of a defect in the engine to any agent of the defendant, no matter what might be the scope of his agency, notice to the defendant. This charge was obviously erroneous. The principle, which should govern in reference to this subject, is indicated in our remarks upon the first charge.

6. The sixth charge, given upon the plaintiff’s request, presents the fact of the engines being unsafe on account of its make and construction, and of injury to the plaintiff, caused by the want of safety resulting from that cause-No steam engine can, in strictness of language, be absolutely safe, but the expression in the charge .is to be considered in reference to the nature of the subject. If the defendant employed an engine from its make and construction, unsafe in that sense, and knew thereof, or would have known thereof by the exercise of reasonable care and ' diligence, it would be responsible to one of its servants for injuries caused by such defect in make and construction, after it was known, or ought to have been known, to the defendant, if the defect was not known to plaintiff. But the charge infers a knowledge of the unsafeness growing out of the make and construction from the use of such engines for several years. Certainly such use would be a circumstance which might be argued to the jury on the question of notice, but the charge cannot be correct, unless notice is a legal presumption from such use. "We do not think it is, and the charge is therefore erroneous. It might be, per adventure, that in the use of the engines the unsafeness had never been developed, and if so, the force of the fact would be lessened, if not destroyed.

7. The seventh charge given is erroneous for reasons apparent from application of our remarks upon the third and fourth charges.

8 and 9. The proposition of law involved in the eighth and ninth charges are correct. — 1 Redfield on Railways, 625; 2 ib. 220, 225. .

The nine charges herein before noticed, were given by the court upon the plaintiff’s request. The court seems, from the bill of exceptions, to have given, mero motu, an additional charge. That charge a majority of the court deem a fair and correct statement of the law, except in so far as it directs that notice to persons, whose duties were such that authority to receive such notice would be within the proper scope of their agency, is notice to the defendant. The question whether authority to receive notice of a fact was within the scope of the duties of an agency, must be, upon ascertained facts, a question of law, and should not be referred to the jury. The principle which should govern this question is discussed in our remarks upon the second charge given by the court upon the plaintiff’s request. — See, also, Angel & Ames on Corporations, § 305 ; Story on Agency, § 140.

Judge, J., thinks the entire charge unobjectionable ; the other judges regard it as objectionable for the reason above stated. To the qualifications of the first charge given upon defendant’s request, there can be no objection, unless it be understood to affirm what is objected to in the charge last above noticed.

The second charge requested by the defendant, involves a question of pleading, which we do not decide, because it can be obviated on another trial.

The court erred in the refusal of the third and fourth charges requested by the defendant; it should have given them both.

Eeversed and remanded.