Southern Railway Co. v. Weatherlow

McCLELLAN, J. This is the second appeal-in this case. — Southern Railway Co. v. Weatherlow, 153 Ala. 171, 44 South. 1019. The trial was liad on count 4, all others being eliminated. This count was considered, on former appeal, with reference to the demurrer assailing it, and it was then necessarily held to state a cause of action as for wanton or willful injury, and also to be good against the objections taken by the demurrer. A reconsideration of the propriety of the court’s action in overruling the-demurrer leads to the same conclusion. The argument, in brief, that the count omits to aver that the servants operating the engine were acting within the scope of their employment, cannot be considered, since there is no ground of the demurrer taking the point argued. Obviously, that omission, if objectionable, would not render the count [154] so fruitless as to state' no cause of action. If ■ faulty for the omission, it was the office of appropriate demurrer to call attention to the defect, that the pleader might amend. Upon a reexamination of the evidence, in connection with the issues raised by the fourth count, the previous ruling on that matter must he reaffirmed. They were properly submitted to the jury for their decision. The law has been repeatedly adjudged, and that to finality, in respect of what, in fact, constitutes a willful or wanton injury in cases like that at bar. It is not thought necessary to again reiterate at this time. The affirmative charge not being due the defendant, as • before indicated, the only special instructions insisted on, in brief, as being erroneously refused defendant, are those numbered 10 and 25. We find no charge 10 in the bill of exceptions. Charge 25 was properly refused. It invades the jury’s province. It does not refer to the “speed” of the engine at the time of the injury, or to the crossing at which the injury occurred. It singles out a particular feature of the evidence, in violation of the rule. It may he otherwise faulty. The charge of the court ex mero motu is set out in • the bill. Viewing the two excerpts therefrom, to which defendant took exceptions, and here urges as error, in connection with other parts of the charge declaratory of the essentials to the imputation of wantonness or willfulness in respect of an injury, it is apparent that the court did not err to defendant’s prejudice. A trial court cannot be put in error by extracting such points as, when considered without reference to the whole of the charge, or related parts thereof, might appear unsound, but, when taken and read in that connection, [155] would be a sound exposition. Tbe charge must be considered as a whole. The evidence was in conflict. The jury resolved the issues of fact against defendant. The court, upon the motion for a new trial, did not feel justified in disturbing the verdict rendered. We are not convinced that the verdict was so palpably opposed to the weight of the evidence as to warrant the reversal of the conclusion of the trial court in the premises. There is no merit in the. errors assigned- and pressed in argument. The judgment must be affirmed. Affirmed. Dowdell, C. J., and Simpson and Mayfield, ,JJ. concur.