Kansas City, Memphis & Birmingham Railroad v. Henson

31 So. 590, 132 Ala. 528, 1902 Ala. LEXIS 84

Opinion

TYSON, J.

— The second and third pleas of defendant were not required to be verified. There was error, therefore, in sustaining the demurrer to them for want of a verification.—Mayor v. White, 109 Ala. 389; L. & N. R. R. Co. v. Trammell, 93 Ala. 350. It appears affirmatively from the record, however, that defendant had the full benefit of them upon the trial under its first plea. The error was harmless.

There is no merit in any of the exceptions reserved to the rulings of the court upon the admission of testimony.

There was testimony tending to show plaintiff’s ownership of the cow and the injury to it by one of defendant’s locomotive engine. While it was not shown that the injury was inflicted at or near a public road crossing, the crossing of two railroads, a regular station or stopping place, or. in a village, town or city, it was made to appear that the track of defendant’s road at the place at which the alleged injury was committed, was straight for about two miles each way. In view of this evidence and the general duty imposed upon per sons in charge of a .train to keep a look-out for animals on or near the track, it cannot be affirmed that there was no evidence tending to show negligence on the part- of those operating the train.—A. G. S. R. R. Co. v. Boyd, 124 Ala. 525.

■' Charges 1 and 2 each being the general affirmative charge, were properly refused.

Charge 3 whs argumentative.

Charge 5 by the nse of the- words “preponderance of” was misleading and properly refused.

Charge 6 should have been given. The latter is an exact copy of the'one in A. G. S. R. R. Co. v. Boyd, which this court said should have been given.

Charge 8 was properly refused for the reason, if for no other, that there was evidence, other than that of John Gunn, from which the jury was authorized to infer the identity of the injured cow.

Reversed and remanded.