Montgomery Street Ry. Co. v. Rice

ANDERSON, J. The trial court charged out all of the counts of the complaint except No. 3, which charges a wilful or wanton act. Under the evidence, although there was a conflict as to the rate of speed the car was going and as to the motorman’s knowledge of the surroundings, the trial court properly left it to the jury to determine whether or not defendant was guilty of a wanton or willful wrong. — M. & C. R. R. v. Martin, 117 Ala. 367, 23 South. 231; L. & N. R. R. Co. v. Webb, 97 Ala. 314. Charge 4 was properly refused. It singles out a fact upon which it- is hypothesized, and seeks to direct special attention to the evidence tending to show that phase of the defense, and give it undue prominence. We have heretofore observed more than once that charges of this character, assuming that the jury may look to this fact or may consider that fact, or are unauthorized to infer certain formulative conclusions from the evidence, and especially from specific parts of it, are bad. — E. T. V. & G. R. v. Thompson, 94 Ala. 636; Sniver v. Burkes, 84 Ala. 53; Hawes v. State, 88 Ala. 37; Salm v. State, 89 Ala. 56. Charges 5 and 6 are bad, and were properly overruled. We cannot, as a matter of law, say that the defendant wag not guilty, if the car was not going faster than five, six, or seven miles an hour at such a crossing, as is described by the evidence. It was- a question for the. jury. Besides, the charges do not attempt to fix the- speed of the car at the time of the injury. The car may have been running at the rate of five, six, or seven miles an hour during the day, yet may have been running much faster when the injury was inflicted. [614] The eighth charge has often received the condemnation of this court. It is argumentative, and also calls upon the. trial court to declare to the jury that there is no evidence of a particular fact. — Jefferson v. State, 110 Ala. 89. Charge 7 asserts the law, and for its refusal the judgment of the court must be reversed. — L. & N. R. Co. v. Mitchell, 134 Ala. 261; M. & C. R. R. v. Martin, supra; L. & N. R. Co. v. Orr, 121 Ala. 489. Reversed and remanded. McClellan, C. J., and Tyson and Simpson, JJ., concur.