138 Ala. 339 | Ala. | 1903
The plaintiff, Schloze, sustained injuries to his property and person through a collision of an engine of the defendant at the crossing óf a public road with his buggy as he was proceeding in it along the public road. The first count of the complaint ascribes those injuries to “the negligence of defendant’s employes in charge of said engine in the management and operation of said engine.” There was evidence upon which it was open to the jury to find that defendant’s employes in charge of the engine were guilty of negligence in failing to blow the whistle or ring the bell of the en-as it approached the crossing and this negligence had a proximately causal connection with the injuries indicted. The railway track approached, crossed and proceeded beyond the public road on a curve. There was evidence upon which the jury had a right to conclude that the engineer, as he approached the crossing on this curved track, could not see one-fourth of a mile ahead, and that he did not approach the crossing at such speed as to be unable “to prevent an accident in the event of an obstruction on the crossing,” (Code, § 3440) ; and it was for the jury to find whether this dereliction was the proximate cause of the collision. The 3d charge given at the request of the defendant took all this evidence away from the jury, and required them to find the defendant guiltless of negligence upon their belief of certain other distinct and independent facts. It would not, in view of the tendencies of the evidence to which Ave have alluded, necessarily follOAv from the hypothesis of charge 3 that the defendant was guilty of no damnifying negligence; and the giving of the charge Avas an error for which the judgment of the circuit court must be reversed. The case will be remanded.
Reversed and remanded.
