Alabama Great Southern Railroad v. Powers

STONE, J. — 1. The circuit court did not err in giving the' two charges requested by appellee. They each assert correct principles of law. — M. & M. Raihoay Co. v. Blakely, 59 Ala. 471; L. & N. R. R. Co. v. Jones, 56 Ala. 507. And though, it is possible, they are abstract and have a tendency to mislead, yet this furnishes no ground for reversing the judgment. The appellant should have requested explanatory charges “by which the objectionable tendency could have been averted and healed.” McCrary v. Rash, 60 Ala. 374; Smith v. Fellows, 58 Ala. 467; Durr v. Jackson, 59 Ala. 203. 2. Charges numbered 1 and 2, requested by the appellant, and refused by the court, were properly refused. They each confine the diligence to be exercised by the persons, in charge of the train, for the purpose of avoiding the danger, and arresting the injury to the horse, to the time'when the engineer perceived it on the track. If this were the correct rule, the persons in charge of the train need have exercised no diligence, but may have conducted the train in a negligent manner up to the time of perceiving the horse on the track. As was said by this court in the case of S. & N. R. R. Co. v. Jones, 56 Ala. 507: “The engineer, if he saw the ox in dangerous proximity to the track, and under circumstances indicating danger of its getting on the track, should have taken steps promptly to frighten him away; or, if need be, should have arrested the motion of his train, if possible, rather than incur the hazard of destroying another’s property.” We find no error in the record and the judgment is affirmed.