74 So. 680 | Ala. | 1916
Lead Opinion
We are not of opinion that the exceptions to parts of the court’s oral charge to the jury need to be treated seriatim. Those parts to which exceptions were reserved, read in connection with their context, do not appear to involve error.
The damages awarded were ample; we cannot say they were excessive.
Affirmed.
Rehearing
ON REHEARING.
On appellant’s application for rehearing this case went to the full bench, whereupon the court upon due consideration directed the following statement and conclusion:
After a careful re-examination of the evidence, we are still unable to find any justification for the theory that the engineer discovered the peril or dangerous situation of the plaintiff on the occasion complained of. It follows hence that the charge might have been given with perfect propriety and that its refusal constituted error for which the judgment should be reversed, unless it appears upon the whole record that defendant had in another way the benefit, substantially, of the proposition of the instruction refused.
In our original opinion we stated that the court at defendant’s request had given the affirmative charge in writing against count 1 which specifically charged Clem with negligence after he discovered plaintiff’s presence and peril at the place where he was injured. In the brief it is now suggested that the charge as to count 1 was given for the reason that it was drawn under the Employers’ Liability Act of this state. That may have been the reason; but, considering that the answer to the question whether plaintiff and defendant were engaged in interstate commerce rested in .inference to be drawn by the jury, the cogency of the reason is not quite clear. But we are not so much concerned about the court’s reasons as we are about the effect of the record. The bill of exceptions shows that the court in its general statement and oral charge to the jury, after stating the effect of counts 3 and 7, said to the jury: “The other count, gentlemen of the jury, by number I believe is 4. The plaintiff makes the same charges I have suggested to you about the negligence of Mr. Clem who, he says, had charge of the engine in the switch yard at Loyal, and his negligence consisted in this: That Clem discovered that the plaintiff Mr. Fisher was in dangerous proximity to the track he was running the engine on and likely to be injured unless something was done to prevent it, and that after the discovery of that peril he failed to give a signal, a warn
At one place in the record, after what purports to be the court’s oral charge to the jury which at that place, we take it, is set out in compliance with the remedial act of September 25, 1915, requiring that every general charge shall be in writing or taken down by the court reporter as it is delivered to the jury and set out in the transcript on appeal, though this case was tried on September 8, 1915 — and this must haye been after the court had stated the meaning of count 4 to the jury — that appears :
“Before the court completed his charge, the plaintiff’s counsel asked leave to withdraw all the counts; of the complaint except counts Nos. 5 and 7. Thereupon the court instructed the jury as follows: ‘Now the plaintiff has the right at any time to withdraw any of these counts, and those that were left in’— before that the court had given the affirmative charge against counts 1 and 2 — ‘have been withdrawn until we have only counts 5 and 7, and these are the only ones you will consider.’ ”
The bill of exceptions contains an identical account of what happened, as stated above, but this in addition: “At the conclusion of the court’s oral charge, in open court, and in the presence of the jury and before it retired, plaintiff’s counsel withdrew all the counts of his complaint except counts 5 and 7, stating to the court that all the issues charged in the counts withdrawn were embraced in these two counts.”
The process set forth above eliminated not only counts 1 and 2, to which we have referred, but counts 3 and 4, in both of which plaintiff’s injury was ascribed to the negligence of Clem and in the last named, or numbered, in which it was alleged that, “Clem discovered plaintiff’s peril in time to avoid injuring him by giving signals of warning and stopping said switch engine, one or both, and negligently failed to give warning signals or to stop said engine,” thus stating the only conceivable form of subsequent negligence that might have been attributed to Clem in the circumstances. In the 'fifth count plaintiff counted upon the negligence of Sparks after discovering plaintiff’s peril, while count 7 contained only the general charge that: “The agents or employees of the defendant, engaged in operating said engine, negligently propelled the same against the person of the plaintiff, inflicting great personal injury.”
Application overruled.