Southern Railway Co. v. Kendall & Co.

69 So. 328 | Ala. Ct. App. | 1915

BROWN, J.

(1) There is nothing in the record showing that the motion for a new trial was ever acted upon by the trial court, and for this reason nothing is presented for review by assignments of error predicated on this motion.—Milner Coal & R. R. Co. v. Wiggins, 143 Ala. 132, 38 South. 1010.

(2) There is nothing in the record showing that motion was made to exclude the testimony of J. L. Kendall as to the market value of cedar at Gurley’s Station, and assignments of error predicated on.such supposed ruling are not sustained. The only/ motion to exclude testimony given by this witness was made with respect to an explanation of the difference between the statement presented when the claim for damags was filed with the defendant and the claim as embraced in the complaint.

(3) Where there is more than one count in the complaint and the defendant is not entitled to the affirmative charge on all the counts, it is not error to refuse charges in the form of charges 3, 4, and 5. City of Birmingham v. Poole, 169 Ala. 177, 52 South. 937; Kress v. Lawrence, 158 Ala. 652, 47 South. 574; Cent. of Ga. R. R. Co. v. Hingson, 186 Ala. 40, 65 South. 45.

(4) Charges 1, 11, 25, 23, ignore the issues presented by the second count of the complaint, which ascribes the loss to the negligence of the defendant in allowing dry grass and other combustible matter to accumulate on its right of way, so that it was likely to be ignited by sparks from passing trains, and were well refused.—Southern Ry. Co. v. Dickens, 161 Ala. 144, 49 South. 766; L. & N. R. R. Co. v. Miller, 109 Ala. 500, 19 South. 989.

(5) Charge 7 is argumentative, and singles out and gives undue prominence to a part of the evidence. — 5 Mayf. Dig. 128, § 16.

(6) Charge 10 is subject to the vice of a tendency to mislead the jury to the conclusion that defendant must be guilty of negligence with respect to the equipment or operation of its train, and, also required the jury to find that the fire was communicated “at or neár the said posts,” thus narrowing the issues.

(7) Charge 13 requires the issues to be proven by a preponderance of the evidence, and this exacted too high a degree of proof; proof to the reasonable satisfaction of the jury is all the law requires.—U. S. F. Co. v. Charles, 131 Ala. 658, 31 South. 558, 57 L. R. A. 212; Southern Ry. Co. v. Riddle, 126 Ala. 244, 28 South. 422.

(8) Charge 22 invades the province of the jury. .It is the province of the jury to draw inferences from the evidence.— Pantaze v. West, 7 Ala. App. 599, 61 South. 42.

(9, 10) Charge 12 invades the province of the jury. Although the engineer may have properly handled the engine, it does not necessarily follow that it was handled without negligence. This charge seems to avoid negativing in words the emission of sparks through the negligence of the construction, equipment, or operation of the engine, and is misleading in that the operation predicated might have been understood by the jury to have had reference to the general operation of the engine, which might, under certain conditions, be “properly handled” to conserve the property and life under the charge of the engineer, while not so skillfully operated as to prevent emitting unnecessary sparks. Assuming that the fire originated from sparks emitted from one of defendant’s engines, the burden was upon the defendant to show, not only that the engine was properly equipped and properly handled, but that it was properly constructed.—Coffman v. L. & N. R. R. Co., 184 Ala. 474, 63 South. 527; A. G. S. R. R. Co. v. Johnston, 128 Ala. 283, 29 South. 771.

When the portion of the oral charge to which exception is reserved is read in connection with the entire charge, the law of the case is clearly stated, and no error is shown.—Reiter-Connolly Mfg. Co. v. Hamlin, 144 Ala. 192, 40 South. 280.

(11) The evidence is in conflict as to the time the fire started, and the point it was first discovered is not definitely shown by the evidence. The weight of the evidence is that the fire was discovered between 12 o’clock and the time defendant’s train No. 26, east-bound, passed Gurley’s Station, and the engineer in charge of the engine pulling train No. 25, west-bound, testified positively that he discovered fire in the vicinity of the cedar yards as he approached Gurley’s. The evidence also shows that after 8 o’clock p. m. one or more freight trains passed Gurley’s. The last train passing before No. 25 passed was train No. 41, as late as 9:57. This evidence was sufficient to afford an inference that the fire was communicated from some one of the defendant’s passing engines, to the grass and other matters of highly inflammable nature that had accumulated on the defendant’s right of way, and that its servants or agents were guilty of negligence in this respect that proximately caused the plaintiff’s loss. The affirmative charge, therefore, was well refused.

(12) The assignment of error based on a refusal of the affirmative charge cannot be sustained for another reason. While the bill of exceptions at its conclusion contains the statement, “This was all the evidence,” it shows on its face that the memorandum made by the. witness Roberts was offered in evidence, and that is not set out, and it also shows that the diagram showing the physical relation of the cedar yards to the defendant’s tracks, and the location of the sawdust pile, and other -matters material to an understanding of the situation, is not set out in the record.—Ala. Terminal R. R. Co. v. Benns, 189 Ala. 590, 66 South. 589; Jones v. White, 189 Ala. 622, 66 South. 605; Sloss-Sheffield S. & I. Co. v. Redd, 6 Ala. App. 404, 60 South. 468; Warble v. Sulzberger, 185 Ala. 603, 64 South. 361; Cont. Gin. Co. v. Milbrat, 10 Ala. App. 351, 65 South. 424; Southern Ry. Co. v. Herron, 12 Ala. App. 415, 68 South. 551.

Affirmed.