Southern Railway Co. v. Shirley

McCLELLAN, C. J. It is insisted that the affirmative charge requested by the railway company, defendant below, should have been given for that, it is further claimed, the evidence showed without conflict that defendant’s servants in charge of the engine which ran against and killed plaintiff’s cow exercised due care in operating the locomotive and were guilty of no negligence. But Ave do not find the evidence to be all one way on the question of negligence vel non. To the contrary there aa-jis undisputed evidence that the engineer after seeing the coav in a perilous position had the time and opportunity to sound the cattle alarm, to put on brakes and to reverse his engine; and he testified, as did also the fireman, that lie did sound the cattle alarm and put on brakes but that lie. did not reverse the engine. And it is inferable from the engineer’s own testimony that the speed of the train would have been reduced more than it avus by reversing the engine— not to speak of what may be common knowledge on this subject — and that had the speed been reduced eimi slightly more than it was the coav would have gotten clear of the track and escaped injury. On this -state of the evidence it was, to say the least, a question for the jury whether the defendant’s servants were-guilty of negligence proxinmtely contributing to the loss complained of. — Central of Georgia R'y Co. v. Forshee, 126 Ala. 199. On the principles declared in that case, charges 1, 2, 3, 5, 6 and 12 asked by defendant were properly refused. -Charge 4 was properly refused because it is a mere argument. Charge 7 is faulty in that it might Avell have misled the jury to conclude that it aa-us not the engineer’s duty to take any notice of the coav until she was in the act of -crossing the track, though he might have seen her before approaching the track in such -a Avay as to evince her disposition to cro-ss unless frightened -away. Charge 10 refused to the defendant is substantially the same as charge “A” given -at its request; and the court, therefore, committed no error in refusing-charge 10, [600] Charges “B” and “0” given for the defendant cover the same ground and declare the same principles, covered and embodied in charges 8, 9 'and 13, and for this l’eason the court was under no duty to give the last mentioned instructions. Charge 11 requested by defendant is not only faulty in singling out testimony of one witness, but this infirmity is accentuated by its withdrawal from the jury nf a part of the testimony of that witness himself bearing too upon the very point involved in the charge. We find no error in the record and the judgment of the circuit court will he affirmed. Affirmed.