CLOPTON.-
The General Assembly, deeming the common-[434]*434law rules insufficient for the ample protection of persons, stock, and other property, enacted statutes regulating and defining in certain cases the duties and liabilities of railroad companies. These statutes have been repeatedly examined and considered, and their construction may be regarded as well settled. Section 1699 of Code, after making it the duty of the engineer to give specified signals, on approaching, passing, and leaving designated places, provides: “He must, also, on perceiving any obstruction on the track of the road, use all means known to skillful engineers (such as the application of his brakes, and the reversal of his engine), in order to stop the train.” The succeeding section (1700) makes the company liable for all damages to persons, stock or other property, resulting from a failure to comply with the requirements of section 1699 ; and when any stock is killed or injured, or other property damaged or destroyed, by the locomotive or cars, the burden of proof is on the company to show that the requirements of the statute were complied with.
The statute is a modification of the common law. The absolute duty to use all means to stop the train, on perceiving an obstruction on the track, did not exist independent of the statute. It might or it might not be a duty, according to the circumstances. In some conditions, safely consists in quickening the speed. The statute ought not to be extended by construction to cases not included in its clear and unambiguous terms, especially as a failure to comply with the requirements of the statute is made a misdemeanor. To originate the statutory duty, there must concur an obstruction on the trade of the road, against which the locomotive or train may strike while running its proper course and direction, and it must be perceived by the engineer. An animal, though near the road, and on the company’s right of way, is not an obstruction on the track of the road, within the meaning of the statute. — L. & N. R. R. Co. v. Reidmond, 11 Tenn. 205. When it is sought to hold the company liable for damages resulting from a failure to comply with the requirements of the statute, the inquiry should be directed to the ascertainment of the fact, on the existence of which the statutory duty arises. To establish it, positive proof is not essential. Like any other fact to be judicially ascertained, circumstances, from which the inference may be reasonably and satisfactorily drawn — convincing to the mind —will be sufficient. When the fact exists, it is the duty of the engineer to use all means, known to skillful engineers, to stop the train: and when it is established on the trial, the burden is on the company to show a compliance with the requirements of the statute. The law, however, does not exact an attempt of the impossible. If an animal suddenly springs on the track, in front of, and so [435]*435near to the engine, that no human appliances could avail to avoid the injury, the engineer does not violate his statutory duty in not making the attempt to stop the train. — See this case, at the last term, 74 Ala. 150, and 75 Ala. 466.
This construction of the statute does not relieve the company of all liability, when the obstruction is not on the track of the road. When an animal is off the track, and is discovered in close proximity, under circumstances indicating danger, the duty and liability of the company are governed by the rules of the common law. — S. & R. Ala. R. R. Co. v. Jones, 56 Ala. 506. The employees are required to use the care and diligence which a careful and prudent person, handling agencies of similar hazard and power, would employ in the management of his own business. All reasonable care and diligence should be observed, to prevent danger or injury. If a horse is seen on the side of the road, or running along its line, while the train is 'in motion, proper means should be used to frighten him away; and if the road is fenced on both sides, the horse running between the fence and the road, and the first opening is on the opposite side, the expectation that he would attempt to cross at the first opening is natural; and under such circumstances, it is the duty of the engineer to adopt means to cheek the speed of the train, that the horse may safely pass, unless checking involves more peril than continued running.
We have stated the rule governing the liability of the company, on the hypothesis that the animal is seen. Actual discovery is not essential. The obligatory care and diligence consist, both in a proper watchfulness, and in the use of the appropriate and necessary means to prevent an accident, when the danger is discovered. When the animal is not seen because of the inattention or negligence of the engineer, and injury results by reason thereof, the company is liable, as if the animal had been observed. A proper lookout at all times, along the track, and near the road, is a duty enjoined by law. An engineer has other equally important duties in operating a train, which demand portions of his time and attention. It is not meant, “ that the engineer shall keep his eye steadily on the track before him, to the neglect of his other equally imperative duties. . . . He meets this requirement, when he bestows on the service that steady, regular care and watchfulness, which his other duties allow a very careful and prudent person to give to it.” — See this case, swpra.
Negligence ml non, in such case, depends upon the attendant circumstances. The inquiry, to which the investigation should be directed, is, whether the engineer, by keeping a proper lookout, consistent with the discharge of his other duties, could have discovered the animal in time to prevent the in[436]*436jury by the employment of due precautions. In this case, if, on the foregoing rules, the engineer could have discovered the horse in time to have checked the speed of the train, so as to have allowed him to escape, the company is guilty of negligence. On the other hand, if the engineer was in the discharge of his duties, and was using that degree of diligence which v.ery prudent persons observe in the conduct of their own business, .and. did not discover the horse., until it sprang on .the track in front of, and in such proximity to the engine, that no human agencies could have avoided the injury, the company is not liable. The question is, not whether the’ engineer could have possibly discovered the horse, but whether there .was a reasonable capability of seeing him under all the circumstances. — 74 Ala. 150.
There is no error in giving the .charges asked by the plaintiff, as we understand them., If it was supposed they were calculated to mislead, explanatory or qualifying charges should. have been requested. The second, instruction asked by defendant should have been given.. The doctrine of error.without injury can not be applied bo the refusal, because the court had previously given another charge .asserting substantially the same legal proposition. The parties have .a right to. frame their charges, a.nd,- if correct, t.o have them given, in. the language used. — Polly v. McCall, 37 Ala. 20.
The presumption is, that evei’y witness • intends to tell the truth. It is. unquestionably the.
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CLOPTON.-
The General Assembly, deeming the common-[434]*434law rules insufficient for the ample protection of persons, stock, and other property, enacted statutes regulating and defining in certain cases the duties and liabilities of railroad companies. These statutes have been repeatedly examined and considered, and their construction may be regarded as well settled. Section 1699 of Code, after making it the duty of the engineer to give specified signals, on approaching, passing, and leaving designated places, provides: “He must, also, on perceiving any obstruction on the track of the road, use all means known to skillful engineers (such as the application of his brakes, and the reversal of his engine), in order to stop the train.” The succeeding section (1700) makes the company liable for all damages to persons, stock or other property, resulting from a failure to comply with the requirements of section 1699 ; and when any stock is killed or injured, or other property damaged or destroyed, by the locomotive or cars, the burden of proof is on the company to show that the requirements of the statute were complied with.
The statute is a modification of the common law. The absolute duty to use all means to stop the train, on perceiving an obstruction on the track, did not exist independent of the statute. It might or it might not be a duty, according to the circumstances. In some conditions, safely consists in quickening the speed. The statute ought not to be extended by construction to cases not included in its clear and unambiguous terms, especially as a failure to comply with the requirements of the statute is made a misdemeanor. To originate the statutory duty, there must concur an obstruction on the trade of the road, against which the locomotive or train may strike while running its proper course and direction, and it must be perceived by the engineer. An animal, though near the road, and on the company’s right of way, is not an obstruction on the track of the road, within the meaning of the statute. — L. & N. R. R. Co. v. Reidmond, 11 Tenn. 205. When it is sought to hold the company liable for damages resulting from a failure to comply with the requirements of the statute, the inquiry should be directed to the ascertainment of the fact, on the existence of which the statutory duty arises. To establish it, positive proof is not essential. Like any other fact to be judicially ascertained, circumstances, from which the inference may be reasonably and satisfactorily drawn — convincing to the mind —will be sufficient. When the fact exists, it is the duty of the engineer to use all means, known to skillful engineers, to stop the train: and when it is established on the trial, the burden is on the company to show a compliance with the requirements of the statute. The law, however, does not exact an attempt of the impossible. If an animal suddenly springs on the track, in front of, and so [435]*435near to the engine, that no human appliances could avail to avoid the injury, the engineer does not violate his statutory duty in not making the attempt to stop the train. — See this case, at the last term, 74 Ala. 150, and 75 Ala. 466.
This construction of the statute does not relieve the company of all liability, when the obstruction is not on the track of the road. When an animal is off the track, and is discovered in close proximity, under circumstances indicating danger, the duty and liability of the company are governed by the rules of the common law. — S. & R. Ala. R. R. Co. v. Jones, 56 Ala. 506. The employees are required to use the care and diligence which a careful and prudent person, handling agencies of similar hazard and power, would employ in the management of his own business. All reasonable care and diligence should be observed, to prevent danger or injury. If a horse is seen on the side of the road, or running along its line, while the train is 'in motion, proper means should be used to frighten him away; and if the road is fenced on both sides, the horse running between the fence and the road, and the first opening is on the opposite side, the expectation that he would attempt to cross at the first opening is natural; and under such circumstances, it is the duty of the engineer to adopt means to cheek the speed of the train, that the horse may safely pass, unless checking involves more peril than continued running.
We have stated the rule governing the liability of the company, on the hypothesis that the animal is seen. Actual discovery is not essential. The obligatory care and diligence consist, both in a proper watchfulness, and in the use of the appropriate and necessary means to prevent an accident, when the danger is discovered. When the animal is not seen because of the inattention or negligence of the engineer, and injury results by reason thereof, the company is liable, as if the animal had been observed. A proper lookout at all times, along the track, and near the road, is a duty enjoined by law. An engineer has other equally important duties in operating a train, which demand portions of his time and attention. It is not meant, “ that the engineer shall keep his eye steadily on the track before him, to the neglect of his other equally imperative duties. . . . He meets this requirement, when he bestows on the service that steady, regular care and watchfulness, which his other duties allow a very careful and prudent person to give to it.” — See this case, swpra.
Negligence ml non, in such case, depends upon the attendant circumstances. The inquiry, to which the investigation should be directed, is, whether the engineer, by keeping a proper lookout, consistent with the discharge of his other duties, could have discovered the animal in time to prevent the in[436]*436jury by the employment of due precautions. In this case, if, on the foregoing rules, the engineer could have discovered the horse in time to have checked the speed of the train, so as to have allowed him to escape, the company is guilty of negligence. On the other hand, if the engineer was in the discharge of his duties, and was using that degree of diligence which v.ery prudent persons observe in the conduct of their own business, .and. did not discover the horse., until it sprang on .the track in front of, and in such proximity to the engine, that no human agencies could have avoided the injury, the company is not liable. The question is, not whether the’ engineer could have possibly discovered the horse, but whether there .was a reasonable capability of seeing him under all the circumstances. — 74 Ala. 150.
There is no error in giving the .charges asked by the plaintiff, as we understand them., If it was supposed they were calculated to mislead, explanatory or qualifying charges should. have been requested. The second, instruction asked by defendant should have been given.. The doctrine of error.without injury can not be applied bo the refusal, because the court had previously given another charge .asserting substantially the same legal proposition. The parties have .a right to. frame their charges, a.nd,- if correct, t.o have them given, in. the language used. — Polly v. McCall, 37 Ala. 20.
The presumption is, that evei’y witness • intends to tell the truth. It is. unquestionably the. duty of .the jury, in scrutinizing and examining the evidence, to weigh fairly and impartially the testimony of eaph witness — judging his credibility by his conduct while testifying, the probability of his statements, his intelligence, and the other legitimate tests -by which truth is ascertained; and a juror disregards the solemn obligation of his oath, when he rejects without a legal reason — capriciously or whimsically — the testimony of any witness. It is also conceded, that if the jury was convinced of the truth of the evidence of the. engineer, it was their plain duty, on the principles of this opinion, to.render a verdict for the defendant.. Had the sixth charge merely asserted these legal propositions, it would have been unobjectionable. The error consists, in the assumption of the fact, “ that there has been no attempt to impeach the veracity .of the engineer.” One.mode of impeaching a witness is to disprove, by other witnesses, the facts stated by him. — 1 Oreen, on Ev. § 461. The charge, as framed, was properly refused, if there is any evidence from which a contradiction. can be inferred.
While a juror should discard all prejudice or partiality, •against or in.favor of either party; and while- it is oftentimes highly proper, and even necessary, that the presiding judge, in [437]*437order to secure a fair and impartial trial, should caution the jury against any undue influence, and impress the necessity of a fearless and conscientious discharge'of' their duties, without regard to consequences, and the disgrace which a disregard would bring upon the administration of the'law ; such instructions should be couched in language ntit disrespectful to the jury, and not assuming, in advance, that any of the jurors intended to disregard their high and imperative Obligations. Charges, to which these faults attach, may be properly refused.
A charge which is ambiguous, or requires qualification or explanation, or tends to confuse the jury, ought not to be' given. The seventh charge is obnoxious to this objection. It is difficult to understand what legal proposition it was intended to assert.
We have not deemed it necessary, as there must be a reversal, to consider the remarks of counsel in the concluding argument. We refrain from doing so, in the expectation that counsel will not transgress the domain of legitimate argument.'
Reversed and remanded.