110 So. 53 | Ala. Ct. App. | 1926
A report of this case on former appeal may be found in
The first assignment of error relates to the refusal of the court to give at the request of plaintiff the following charge:
"I charge you that the plaintiff in this cause may recover under the third count, if from the evidence the jury finds that he is entitled to recover, notwithstanding you may find from the evidence that the engine was neither emitting an unusual quantity of steam nor that it made an unusual or unnecessary noise."
The third count of the complaint alleges the negligence of the defendant in general terms, and it was not necessary under this count to prove that the engine was either emitting an unusual quantity of steam or that it made an unusual or unnecessary noise. The plaintiff was entitled to a recovery under this count upon satisfactory proof that plaintiff's horse became frightened at the forward and continued progress of defendant's engine after the engineer realized that the horse was being frightened by the approach of the locomotive and would probably break loose and run away if the approach was continued, and, notwithstanding these facts, the engineer continued to propel the locomotive forward and thereby increased the fright of the horse and caused him to run away and as a proximate result plaintiff was injured. The charge correctly states a part of the law of the case and should have been given. Newsome v. L. N. R. Co.,
(1) "The burden of proof is on the plaintiff to prove to your reasonable satisfaction that there was an unusual emission of steam or that the engine in its operation made an unusual or unnecessary noise, under the third count of his complaint."
This last charge, confined as it was to the third count of the complaint, was in conflict with the court's oral charge, was, to say the least, misleading, and should not have been given. Having been given as requested by defendant, the usual rule of refusing to reverse, where the same rule has been given, does not apply in this case. The court in his oral charge states a correct rule as applicable to the third count; it, then, at the request of defendant, gave a written instruction apparently in conflict and refused a written charge requested by plaintiff conforming to the rule announced in the oral charge. This is error to a reversal.
Plaintiff's charge A was properly refused. We have read the case of Montgomery St. R. Co. v. Hastings,
"It cannot be said, as matter of law, to be negligence, contributing to an injury suffered in a collision with a street car, to drive a horse which is 'afraid or skittish of the street car' on a narrow street in which there is a railway track."
But that case presents a different question from the case at bar. It is one thing to drive a "skittish" horse along a narrow street along which is a street car track and quite another to "negligently hitch a horse easily frightened in close anddangerous proximity to a railway track in a city street." The one admits possible danger dependent upon the *557 ability of the driver to handle the horse; the other admits a real danger. The refusal of this charge was not error.
From what has already been said it follows that the court committed error in giving at the request of defendant charge (1). Ala. G. S. R. Co. v. Hall,
For the errors above pointed out the judgment is reversed, and the cause is remanded.
Reversed and remanded.
