126 Ala. 244 | Ala. | 1899
There was a material conflict in the evidence as to the place at which the cow was killed. The evidence on the part of the defendant being that the cow was killed at the elbow in the curve of the road, where the cow could not be seen by the engineer until it was too late to avert the injury by preventive effort on the part of defendant’s agent; the evidence of plaintiff tended to show that the cow was struck one hundred yards above the curve. This had its bearing, upon the testimony of defendant’s engineer and fireman as to facts testified to by these two witnesses as to the exercise of due care in keeping a lookout as well as to how the injury occurred, and ivas properly left to the ■consideration and determination of the jury. There
Charge 2 requested by the defendant is faulty in that it ignores the duty of keeping a proper lookout for obstructions on the track and of the duty imposed when cattle are seen in dangerous proximity, or could have been so seen by maintaining a proper lookout.
Charge 3 is faulty in that it exacts too high a degree of proof. To reasonably satisfy the jury is the measure of proof required by the law.-Moore v. Heineke, 119 Ala. 627, 639; Torren v. Burney, 113 Ala. 496; Prince v. State, 100 Ala. 146.
Charge 4 is abstract and misleading. There is no evidence that the fact hypothesized in this charge, that is, of a failure to keep a lookout, was the only thing relied on for a recovery. This charge was clearly misleading in its tendencies, and was properly refused.
The remaining charge No. 7' refused to the defendant was calculated to mislead in confining the duty of keeping a lookout to the engineer. • Moreover, every benefit to which the defendant was entitled embraced in the legal proposition as to the duty of maintaining a proper lookout was covered by written charge No. 5 given at the request of the' defendant. There is no error in the record.
Judgment of circuit court is affirmed.
