Central of Georgia Ry. Co. v. Stewart

SIMPSON, J. — This is an action by the appellee for damages on account of the death of plaintiff’s intestate, caused by injuries received by being struck by defendant’s train of cars. While the practice of submitting a number of charges, without numbering them, is to be condemned, and trial courts should see that charges are numbered, so that they can be conveniently referred to, yet the failure to number them does hot relieve this court from the duty of considering them. We generally place a number on the margin of the record ourselves for reference, and there is no objection to the appellee’s doing so. There was no error in the refusal to give the charge which we have numbered 7, requested by the defendant. The cases referred to by counsel for appellant, in. speaking of subsequent negligence, use the terms “due care,” “preventive effort,” etc., but do not discuss the degree of care required. The charge is misleading, as tending to impress the jury with the idea that, after discovering a person in a position of imminent peril, the duty of the engineer is no more than to exercise “such care as a reasonable and prudent man would have exercised to prevent the injury,” -whereas his duty is “to do all in his power, to use all applications at hand promptly and in proper order, known to prudent and skillful engineers,” to avert the injury. — L. & N. R. R. Co. v. [656] Young, 153 Ala. 232, 236, 45 South. 238, 240 (16 L. R. A. [N. S.] 301). For the same reason, the refusal to- give charges 8 and. 9 is without error. In the case of Southern Railway Co. v. Smith, 163 Ala. 174, 177, 183, 50 South. 390, this court failed to notice the misleading tendency of charge 2, and classed it among other charges which should have been given. That part of the opinion in that case referring to charge 2 is overruled. After a careful examination of the evidence in this case, the court finds that, there being a conflict in the evidence as to material facts, the question of wantonness, willfulness, or intentional conduct was for the jury to consider and determine. Consequently there was no error in the refusal of the court to give charge 3, requested by the defendant. There was no error in the refusal to give charge 10, requested by the defendant. It possessed misleading tendencies, as pointed out in Coleman, v. Pepper, 159 Ala. 310, 314, 49 South. 310; Randle v. B. R. L. & P. Co., 169 Ala. 314, 53 South. 918, 920. Having in view the principles established by the decisions of this court, in passing upon the refusal of the court below to grant a new trial, we cannot say that the court erred in refusing to grant a new trial. The judgment of the court is affirmed. Affirmed. All the Justices concur.