Opinion
6 Div. 981.
October 28, 1920.
Appeal from Circuit Court, Jefferson County; John C. Pugh, Judge.
W. A. Denson, of Birmingham, for appellant.
The count erred in giving charge N. Section 5476, Code 1907; 177 Ala. 346, 58 So. 433; 144 Ala. 530, 41 So. 612; 119 Ala. 666, 24 So. 459; 146 Ala. 512, 40 So. 1017; 126 Ala. 103, 27 So. 760; 202 Ala. 406, 80 So. 504; 198 Ala. 302, 73 So. 513. Charges 41 and C were improperly given. 119 Ala. 563. Charge 25 was improperly given. 197 Ala. 71, 72 So. 367. The fact that the jury found for the defendant on the subsequent negligence count did not render the giving of the charges innocuous. 184 Ala. 421, 63 So. 992; 184 Ala. 570, 64 So. 46; 192 Ala. 636, 69 So. 57; 75 So. 191.
Percy, Benners Burr, of Birmingham, for appellee.
Counsel discuss their motion to strike bill of exceptions, with citation of authority, but do not discuss the case on its merits.
Plaintiff (appellant) was injured in a collision between the automobile he was driving and a locomotive engine drawing a train on defendant's railroad. The place of the accident was a public road crossing on a curve where the engineer could not see one-fourth of a mile ahead. In these circumstances the trial court erred in giving charge N at defendant's request. This charge misplaced the burden of proof. Code, §§ 5473, 5476; Billingsley v. N.C. St. L. Ry., 177 Ala. 346, 58 So. 433. And had the charge not been faulty in the respect pointed out, it should have been refused for the reason that, under our decisions, it would have exacted too high a degree of proof. Torrey v. Burney, 113 Ala. 496, 21 So. 348; Lawrence v. Ala. State Land Co., 144 Ala. 524, 41 So. 612; Miller v. Whittington, 202 Ala. 406, 80 So. 499, where a number of cases are cited.
Charges 41 and O should have been refused. It was legally possible under the evidence that the jury should find that defendant's engineer had been guilty of wantonness, even though he did sound signals of approach. Charge N2 is open to the same criticism.
Charge 25, given for defendant, does not define the degree of care required of an engineer after he discovers a person in peril as it has been defined in the decisions of this court. Brown v. Central of Georgia, 197 Ala. 71, 72 So. 366.
Reversed and remanded.
ANDERSON, C. J., and GARDNER and BROWN, JJ., concur.