Southern Ry. Co. v. Patterson

GARDNER,. J. [1,2] That there was sufficient evidence for submission to the jury of the question of subsequent negligence on the part of the agents or servants of the defendant in charge or control of the engine which killed the plaintiff’s intestate is not questioned by counsel for appellant, but it is insisted that the defendant was entitled to the affirmative charge because of contributory negligence on the part of said intestate. This insistence is based upon that portion of the evidence tending to show that, after the deceased had been warned of the approaching train by his companion Hanner, he continued in his efforts to get the horse off the track, and that therefore this conduct constituted such contributory negligence as to bar recovery under the principle recognized in Southern Rwy. v. Irvin, 191 Ala. 622, 68 South. 139, and A. G. S. R. R. Co. v. Smith, 196 Ala. 77, 71 South. 455. While there was some evidence to support this theory, yet there .was also testimony tending to show that the deceased turned to jump at the same time as did his companion, and that he was not aware of the approaching train until that time. It appears from this, therefore, that the proof was in conflict upon this question of contributory negligence, and that this issue was properly submitted to the jury for determination. A. G. S. R. R. Co. v. Sanders, ante, p. 57, 82 South. 17. The charge given at the plaintiff’s request, constituting the sixth assignment of error, was in substance very similar to that portion of the oral charge of the court which found approval in Central of Ga. v. Ellison, 75 South. 159; 1 and there was evidence tending to support the theory advanced therein. There was therefore no error in giving this charge at plaintiff’s request. [3] A number of assignments of error relate to the refusal of certain charges requested by defendant. These charges directed a verdict for the defendant if the jury should find that the engineer was without negligence, omitting any reference to the evidence offered by the plaintiff as to the negligence of the fireman after discovering the perilous position of plaintiff’s intestate on the track in failing to notify the engineer thereof. The court below evidently refused these charges for this reason, and in this action of the court there was no error. [4] In view of the issue of contributory negligence on the part of the plaintiff’s intestate, we think it was competent to show by his companion Hanner that after they got on the track the deceased asked him to look and see if the train was coming. It may also have thrown some light on the proposition as to whether Brand was aware of the immediate approach of the train; but, whether so or not, the question of contributory negligence clearly made the evidence admissible. The witness Hanner had been asked by the defendant, and had answered in the affirmative, the same question which was asked the witness Rather for the purpose of impeaching Hanner’s testimony. There was therefore no reversible error in sustaining this question to the witness Rather. [5] Count 2 as amended was not subject to the demurrer interposed thereto. Jones v. Strickland, 201 Ala. 138, 77 South. 562. Finding no reversible error in the record, the judgment appealed from must be affirmed. Affirmed. ANDERSON, C. J., and SAYRE and BROWN, JJ., concur. Footnotes [1] 199 Ala. 571.