65 So. 857 | Ala. Ct. App. | 1914
This was an action to recover damages for the killing of a horse by a train of the appellant (defendant below) at a crossing of its track and a street in the city of Huntsville. The complaint contained three counts, one charging simple negligence, another wanton negligence, and the th-ird negligence subsequent to the discovery by the defendant, its agents, servants, or employees, of the horse’s dangerous proximity to the track as the train approached the crossing. The case was tried on issue joined on the plea of the general issue, with leave to offer in evidence any matter or thing which would be a good defense in bar.
The horse in question was one of a team being driven to a wagon by an employee of the plaintiff. The defendant’s track in the direction from which the train was approaching curved towards the crossing for a considerable distance, and until it was within a few feet of the crossing. The train and the wagon were going in
Charges 3, 4, 5, 6, 8, 12, 13, 15, 16, 17, 18, and A, re-. quested by the defendant, were properly refused, as each of them in its statement of a predicate for a verdict favorable to the defendant omitted any reference to the phase of the evidence above referred to which tended to prove subsequent negligence as alleged.
Charges 2 and 7, requested by the defendant, were well refused, as each of them in effect improperly asserted that the burden was upon the plaintiff to disprove the contributory negligence relied upon by the defendant. — Ledbetter v. St. Louis & S. F. R. Co., 184 Ala. 457, 63 South. 987.
The form of refused charge 19 justified the court in refusing to give it. There being three counts upon which the case was submitted to the jury, the court was not bound to require them to render a verdict as to each or either of the counts specifically. — Western Steel Car & Foundry Co. v. Cunningham, 158 Ala. 369, 48 South. 109.
To say the least of it, charge B Avas so calculated to mislead that the court is not chargeable with error for refusing to give it. It was so expressed as to be liable to convey the impression that the fireman was under no duty in reference to stopping the train in order to avoid
Refused charge E was erroneous, as in effect it stated a proposition which cannot be reconciled with the statutory requirement as to the signals to be given in approaching and passing a public road crossing. — Code, § 5478.
The pleadings in the case involved no issue of willfulness, and the court was not required to give instructions as to such an issue. It follows that reversible error was not committed by the refusal of the court to give charges F and G. Furthermore, charge F was objectionable, in that it asserted no- proposition of law. — Mobile Light & R. R. Co. v. Walsh, 146 Ala. 295, 40 South. 560.
Without inquiring whether refused charge L was or was not otherwise faulty, its incorrect statement as to
Affirmed.