(After stating the facts.) 1. The court below did not err in refusing to grant a nonsuit, nor in refusing to direct a verdict for the defendants. There was evidence from which the jury were authorized to find, that the plaintiff was injured on a public crossing by the running of defendant company’s train, that the engineer negligently failed to observe the blow-post law, that he did not check the speed of his train as he approached the crossing where the injury was inflictft upon the plaintiff; and if the plaintiff’s testimony is accepted as true, it was through no fault of his own that he was on the crossing when the train passed. Whether the plaintiff was entitled to a verdict was a question that the court should have submitted to the jury, and this was done.
3. In subdivisions 4 and 5 of the sixth ground of the motion, exceptions are taken to the court’s refusal to give in charge to the jury certain written charges requested. There was, however, no
3. The court was requested to give the following charge: “If you believe, from the evidence, that the plaintiff Reynolds was not injured in the manner as claimed, but that he was attempting to swing the train as it passed, and in so doing got injured, then I charge you that he can not recover in this case.” The court’s failure to give it is complained of. But this exception can scarcely be regarded as meritorious, in view of the fact that the court did instruct the jury as follows: “The burden is upon the plaintiff to prove that he received the injury that he is alleged to have received by the running of the defendant’s train in the manner alleged. . . If he received it otherwise, — in other words if he was injured ever so badly and received it by trying to swing the train by the side of it, he would not be entitled to recover a cent, because that is different from the way he has alleged it in his declaration.”
4. In the 7th, 8th, 15th, and 16th grounds of the motion, the following portions of the court’s charge, numbered respectively (1), (2), (3), (4), are excepted to. (1) “At the outset of this case the burden is upon the plaintiff to prove that he received the injuries that he is alleged to have received by the running of the defendant’s train in the manner alleged. In other words, gentlemen, the burden is upon the plaintiff to show that he received these
5. The 9th, 10th, 11th, 13th, and 14th grounds of the motion •complain that the court gave in his charge certain sections of the •code covering in part the subject of crossings. It would have been better had some portions of these sections been omitted, because there were no facts to which they were applicable; but the inapplicability being clear, the jury could scarcely have been misled by them, and their having been given in charge does not constitute reversible error.
6. The criticism upon the charge of the court embraced in the 17th ground of the motion is sufficiently dealt with in the 6th headnote.
7. The verdict is not excessive, and there is nothing in the record ■to show that in making a verdict in this case the jury took into ■ consideration any facts or evidence other than that which had been properly submitted for their consideration in the case on trial.
Judgment on main bill of exceptions affirmed. Cross-bill of exceptions dismissed.