The opinion of the Court was delivered by
Mr. Ci-iiEE Justice Pope.
This action to recover $150 of defendant railway company for negligently killing a mule,
the property of plaintiff, came on for trial before Judge Klugh and a jury on April 30th, 1903. Testimony was offered by both plaintiff and defendant on the matter of the alleged negligence of the defendant; some of this testimony was objected to, some of it was allowed over defendant’s objection. This is made a ground of appeal. Both sides to the controversy made requests to charge. His Honor’s charge is made a ground of appeal. After verdict found for plaintiff, a motion was made for a new trial by defendant upon the minutes, which was refused. This is made a ground of appeal, after judgment entered. The grounds of appeal are as follows:
“1. Excepts because his Honor erred in allowing the plaintiff to testify, over defendantt’s objection, that the train which killed plaintiff’s mule failed to give the signals required by statute for a public crossing 600-yards from the place where the said mule was struck, and also failed to give the signals required by statute for another crossing 400 yards from the place where said mule was struck; whereas, it is submitted that this accident not having occurred at a crossing and the complaint containing nO‘ allegation to which it could be responsive, such testimony was irrelevant to the issue, and should not have been admitted.
“2.
Excepts because his Honor erred in allowing Major Cason to testify, over the objection of defendant, that the train which killed plaintiff’s mule failed to give the signals prescribed by statute for a public crossing a considerable distance, some 400 j^ards, from the place where this accident occurred. For the reasons stated under exception 1.
“3. Excepts because his Honor erred in charging the jury as follows: ‘The failure to give the statutory signal (his Honor referring to the failure to give the statutory signal for the public crossing some 400 yards from the place of the accident) is a circumstance which the jury may consider in determining whether the railroad was running its train with due caution or not. Even in a case that does not arise at a crossing, a failure to give the signal would not in a case like
-this we are now considering be negligence
per se,
that is, negligence within itself; the mere fact of failure to give the signal would not amount to such negligence as would make the railroad liable, in a case like this. Mere circumstance for you to consider. The law presumes, inasmuch as the law requires the railroad to give these signals, presumes that it does give them, and if a party undertakes to- rely upon the failure of the railroad to give the signal, then the party who alleges must prove by the preponderance of the evidence that the signal was not given; and if that is the case, then it becomes a circumstance for the consideration of the jury to determine whether, under all the circumstances in the case, the railroad was exercising the care in running its train which the law requires.’ For the reasons stated in exception 1, and for the additional reason that no issue being made by the pleadings to which any such charge was applicable, it was to defendant’s prejudice.
“4. Excepts because his Honor erred in charging the jury as follows: ‘Now, in a co-unty where the stock law is of force, everybody has a right to presume — the railroad company has the right, anybody else would have the right to- presume-— that people are obeying the law, are keeping their stock fenced, and, therefore, the railroad is not bound to exercise as great care and vigilance in looking out and watching for stock on its track in a county where the stock law is of force, as they would be where the law allows stock to run at large. That does not excuse a railroad if it knows, as a matter of fact, or if it ought to know, if it has the opportunity to know, and where a person of ordinary intelligence and ordinary observation would know, that stock were at large, that does not excuse a railroad company for killing or injuring stock, where the stock law is of force, if it knows or ought to- know that stock is at large.’ The error consisting in this: That such charge imposed a duty upon the railroad company to keep a close lookout for stock in a county where the stock law is of force, and further imposed a duty upon defendant and authorized a verdict for the plaintiff, if the jury should
find that the defendant had an opportunity to know, or if it-ought to know, that plaintiff’s stock were out, contrary to the stock law. As to all of which the charge exacted greater care than the law requires, and imposed duties not required by law.
“5. Excepts because his Honor erred in charging the jury plaintiff’s request: ‘If you find as a matter of fact that the engineer or fireman saw, or could have seen, the plaintiff’s mule on the track at any time before the killing, and that they did'not try to stop1 the train or to frighten the mule off the track by blowing the whistle or ringing the bell, then the railroad company is guilt}'- of negligence, and you must find for the plaintiff.’ And further by charging with reference to the said request as follows: ‘That is, you must find for the plaintiff, if you find those facts to be true, in case you find they were negligent, and that such negligence was the cause of the injury.’ The error consisting in this: (1) In imposing the duty upon the defendant of keeping a lookout for stock in counties where the stock law is of force; whereas, it is submitted, that no duty arises upon the part of the railroad company in such counties until the stock is seen upon or is dangerously near the railroad track.
(2)
In charging that it was the duty of the company to blow the whistle or ring the bell for stock seen, or which should be seen, by its engineer or firemen, and making its failure to blow the whistle or ring the bell negligence; whereas, the railroad company could fulfill its whole duty under the law and yet fail to give such signals or alarm. (3) In charging the jury what facts would constitute negligence, and make the railroad company liable to plaintiff.
“6. Excepts because his Honor erred in refusing the motion for a new trial made herein upon the ground that there was no evidence to support the verdict, and that it was contrary to the law and the evidence. It being submitted that there was no evidence whatever offered in the case in any way contradicting the positive testimony of the engineer — that he was in the exercise of reasonable and proper
care, and did even more than the law requires, to wit: kept a careful lookout, and when the stock- was seen, exercised the utmost care to prevent injury — all the facts and circumstances corroborating such positive testimony; and as the presumption of negligence against the defendant could not withstand such uncontradicted positive testimony, a new trial should have been granted upon such grounds.
“7.
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The opinion of the Court was delivered by
Mr. Ci-iiEE Justice Pope.
This action to recover $150 of defendant railway company for negligently killing a mule,
the property of plaintiff, came on for trial before Judge Klugh and a jury on April 30th, 1903. Testimony was offered by both plaintiff and defendant on the matter of the alleged negligence of the defendant; some of this testimony was objected to, some of it was allowed over defendant’s objection. This is made a ground of appeal. Both sides to the controversy made requests to charge. His Honor’s charge is made a ground of appeal. After verdict found for plaintiff, a motion was made for a new trial by defendant upon the minutes, which was refused. This is made a ground of appeal, after judgment entered. The grounds of appeal are as follows:
“1. Excepts because his Honor erred in allowing the plaintiff to testify, over defendantt’s objection, that the train which killed plaintiff’s mule failed to give the signals required by statute for a public crossing 600-yards from the place where the said mule was struck, and also failed to give the signals required by statute for another crossing 400 yards from the place where said mule was struck; whereas, it is submitted that this accident not having occurred at a crossing and the complaint containing nO‘ allegation to which it could be responsive, such testimony was irrelevant to the issue, and should not have been admitted.
“2.
Excepts because his Honor erred in allowing Major Cason to testify, over the objection of defendant, that the train which killed plaintiff’s mule failed to give the signals prescribed by statute for a public crossing a considerable distance, some 400 j^ards, from the place where this accident occurred. For the reasons stated under exception 1.
“3. Excepts because his Honor erred in charging the jury as follows: ‘The failure to give the statutory signal (his Honor referring to the failure to give the statutory signal for the public crossing some 400 yards from the place of the accident) is a circumstance which the jury may consider in determining whether the railroad was running its train with due caution or not. Even in a case that does not arise at a crossing, a failure to give the signal would not in a case like
-this we are now considering be negligence
per se,
that is, negligence within itself; the mere fact of failure to give the signal would not amount to such negligence as would make the railroad liable, in a case like this. Mere circumstance for you to consider. The law presumes, inasmuch as the law requires the railroad to give these signals, presumes that it does give them, and if a party undertakes to- rely upon the failure of the railroad to give the signal, then the party who alleges must prove by the preponderance of the evidence that the signal was not given; and if that is the case, then it becomes a circumstance for the consideration of the jury to determine whether, under all the circumstances in the case, the railroad was exercising the care in running its train which the law requires.’ For the reasons stated in exception 1, and for the additional reason that no issue being made by the pleadings to which any such charge was applicable, it was to defendant’s prejudice.
“4. Excepts because his Honor erred in charging the jury as follows: ‘Now, in a co-unty where the stock law is of force, everybody has a right to presume — the railroad company has the right, anybody else would have the right to- presume-— that people are obeying the law, are keeping their stock fenced, and, therefore, the railroad is not bound to exercise as great care and vigilance in looking out and watching for stock on its track in a county where the stock law is of force, as they would be where the law allows stock to run at large. That does not excuse a railroad if it knows, as a matter of fact, or if it ought to know, if it has the opportunity to know, and where a person of ordinary intelligence and ordinary observation would know, that stock were at large, that does not excuse a railroad company for killing or injuring stock, where the stock law is of force, if it knows or ought to- know that stock is at large.’ The error consisting in this: That such charge imposed a duty upon the railroad company to keep a close lookout for stock in a county where the stock law is of force, and further imposed a duty upon defendant and authorized a verdict for the plaintiff, if the jury should
find that the defendant had an opportunity to know, or if it-ought to know, that plaintiff’s stock were out, contrary to the stock law. As to all of which the charge exacted greater care than the law requires, and imposed duties not required by law.
“5. Excepts because his Honor erred in charging the jury plaintiff’s request: ‘If you find as a matter of fact that the engineer or fireman saw, or could have seen, the plaintiff’s mule on the track at any time before the killing, and that they did'not try to stop1 the train or to frighten the mule off the track by blowing the whistle or ringing the bell, then the railroad company is guilt}'- of negligence, and you must find for the plaintiff.’ And further by charging with reference to the said request as follows: ‘That is, you must find for the plaintiff, if you find those facts to be true, in case you find they were negligent, and that such negligence was the cause of the injury.’ The error consisting in this: (1) In imposing the duty upon the defendant of keeping a lookout for stock in counties where the stock law is of force; whereas, it is submitted, that no duty arises upon the part of the railroad company in such counties until the stock is seen upon or is dangerously near the railroad track.
(2)
In charging that it was the duty of the company to blow the whistle or ring the bell for stock seen, or which should be seen, by its engineer or firemen, and making its failure to blow the whistle or ring the bell negligence; whereas, the railroad company could fulfill its whole duty under the law and yet fail to give such signals or alarm. (3) In charging the jury what facts would constitute negligence, and make the railroad company liable to plaintiff.
“6. Excepts because his Honor erred in refusing the motion for a new trial made herein upon the ground that there was no evidence to support the verdict, and that it was contrary to the law and the evidence. It being submitted that there was no evidence whatever offered in the case in any way contradicting the positive testimony of the engineer — that he was in the exercise of reasonable and proper
care, and did even more than the law requires, to wit: kept a careful lookout, and when the stock- was seen, exercised the utmost care to prevent injury — all the facts and circumstances corroborating such positive testimony; and as the presumption of negligence against the defendant could not withstand such uncontradicted positive testimony, a new trial should have been granted upon such grounds.
“7.
Excepts because his Honor erred in holding, on the motion for a new trial, that the jury 'could have found negligence on the part of defendant from the facts in evidence, that the mule in question and another one were 100 feet from the railroad trade, and that the engineer could have seen them for a distance of 450 yards;’ whereas, it is respectfully submitted, that the law requires no such care on the part of the engineer, as that he shall keep a lookout in counties where the stock law is of force for stock 100 feet from the railroad track, when he is 450 yards away; and it appearing that in his Honor’s judgment this was the only evidence to support the verdict, and it being insufficient, • a new trial should have been granted upon the ground that there was no-evidence to support the verdict, and that it was contrary to the law and the evidence.
“8. Excepts because his Honor erred in refusing the motion for a new trial herein upon the grounds that there was no evidence to support the verdict, and that the same was contrary to the law and the evidence.”
We will now pass upon these exceptions.
1
The 1st, 2d and 3d exceptions cannot be sustained. The trial Judge did not overrule the objection to the testimony because he realized that the killing of a mule away from a highway crossing or away from a traveled place, could not make such killing to fall within the statute which makes it the duty of a railroad to sound the whistle on its engine or ring its bell when within
Uve hundred yards
(500 yards) distance from the crossing of a street, highway or traveled place, to prevent the railroad company from liability for injury to person or property on
the crossing, still it is the law of the State that such bell should be rung or whistle blown, when
within five hundred yards
of such crossing, and it is negligence not to1 do so— thereby opening up the way to have it appear by testimony that
as a circumstance
there was this negligence. This being so, it was perfectly proper to receive the testimony of the witness or witnesses that the railroad did not sound the whistle or ring the bell. The error of appellant consists in this, that it overlooks the fact that the Circuit Judge refused plaintiff’s first request.
2
We will now consider appellant’s fourth and fifth exceptions. It is the duty of the engineer to look out for stock on the track of the railroad company. It is true, that his duty is less accentuated in a county in this State where the stock law exists; nevertheless, it is the duty of the engineer to watch out for every danger. The engineer must do this to protect the interests of the railroad company as well as of the general public. We think the Circuit Judge made no mistake in declaring the law in this case. These exceptions are overruled. The report of this case should set out the charg'eof the presiding Judge in full.
3
We will now consider exceptions 6th, 7th and 8th. The motion for a new trial in this case was made upon the minutes of the Court. The discretion of the Circuit Judge governs in cases like the present, unless he commits error of law. It is an error of law in the event that there is no testimony bearing upon material facts. A careful examination of all the testimony shows that there was some testimony on each point in issue. Such being the case, there was no error when the Circuit Judge declined to grant a new trial.
It is the judgment of this Court, that the judgment of the Circuit Court be affirmed.