Mobile & Ohio Railway Co. v. Glover

DENSON, J. This is an action by the plaintiff against the defendant for the negligent killing of plaintiff's dog. From an inspection of the pleadings it is clear that wilfullness is not within the issue made by them; hence the court erred in giving, at the request of the defendant in writing, the following charge-to the jury: “The court charges the jury that, unless they find that the defendant willfully killed the dog; sued for, they should find a verdict, for the defendant.” To correct the error, the court properly granted plaintiff’s mo [388] tion for a new trial, and on the ground that the court erred in giving the charge. The burden of proof, it is true, was on the plaintiff to reasonably satisfy the jury that his dog was killed through the negligence of the defendant’s engineer in operating the train of cars. We cannot say the evidence does not afford an inference of such negligent killing. Therefore the insistence of appellant that the defendant was entitled to the affirmative charge is without merit.—K. C., M. & B. R. R. Co. v. Childers, 132 Ala. 611, 32 South. 717. ■ It is not necessary to pass on the suggestion, made by appellee’s counsel, that the bill of exceptions should be stricken. The judgment, setting aside the verdict and granting a new trial, is affirmed. Affirmed. Tyson, C. J., and Haralson and Simpson, JJ., concur.