Opinion
6 Div. 912.
May 1, 1919. Rehearing Denied May 22, 1919.
Appeal from Circuit Court, Jefferson County; Romaine Boyd, Judge.
Burgin Jenkins, of Birmingham, for appellant.
Tillman, Bradley Morrow and T. A. McFarland, all of Birmingham, for appellee.
The defendant's given charge (which we mark 1) was a correct statement of law, and the giving of same was not reversible error. Sington v. Birmingham Ry., 76 So. 48. If the charge was inapt or misleading when considered under the facts of this case, it should have been explained or qualified by a countercharge. Republic v. Howard, 196 Ala. 663, 72 So. 263. Nor can we say that the charge was erroneously given because of section 5473 of the Code of 1907, requiring the slowing of the train before reaching the crossing in question. This statute contemplates a slackening of speed before entering a curve crossed by a public road, if the engineer cannot see one-fourth of a mile ahead. The curve here was not crossed by the road, as the undisputed evidence shows that it was some distance beyond said road.
There was no error in refusing the plaintiff's requested charge 1. It ignores the contributory negligence of the deceased, and instructs a finding for the plaintiff upon the facts hypothesized, notwithstanding the deceased may have been guilty of proximate contributory negligence. Alabama Steel Wire Co. v. Thompson, 166 Ala. 460, 52 So. 75, wherein the case of Frierson v. Frazier, 142 Ala. 232, 37 So. 825, was followed, and the case of the Virginia Bridge Co. v. Jordan, 143 Ala. 603, 42 So. 73, 5 Ann. Cas. 709, was overruled; Age-Herald v. Waterman, 188 Ala. 272, 66 So. 16, Ann. Cas. 1916E, 900. Of course, the deceased, being a passenger for hire and having no control over the driver Fields, could not have the conduct of said driver imputed to him. Cent. of Ga. R. R. v. Jones, 195 Ala. 378, 70 So. 729; Birmingham-Tuscaloosa R. R. v. Carpenter, 194 Ala. 141, 69 So. 626. But there was evidence from which the jury could have inferred independent negligence upon the part of the deceased; that is, that he could have saved himself by the exercise of ordinary care after becoming aware of his peril. Whether slight or strong, there was some evidence that he was on the running board facing and looking for the train and that the automobile slowed down before reaching the crossing; and so long as the jury could infer that the deceased discovered the danger and could have escaped by the exercise of ordinary care, the issue should have been left to them, and not excluded from their consideration by the giving of plaintiff's requested charge which was properly refused.
The judgment of the circuit court is affirmed.
Affirmed.
McCLELLAN, SAYRE, and GARDNER, JJ., concur.