South & North Alabama Railroad v. Jones

56 Ala. 507

• Court: Supreme Court of Alabama
• Decided: December 15, 1876
• Status: Published

Opinion

STONE, J.

The affirmative charge given in this cause, under a severe grammatical criticism, might be construed as invading the province of the jury, in pronouncing on the effect of the evidence. We do not think, however, that such was the intention of the presiding judge. By the phrase, “ failing to do so,” we think he meant, if the engineer failed to do so; and we think that, taken in the connection in which it was uttered, the jury so understood the expression. Such ellyptical forms of expression are not unusual, either in public or private speaking, and they rarely mislead. If the charge was ambiguous, or likely to mislead, it was both the privilege and duty of counsel to call the court’s attention to it, so that it might be corrected — See 1 Brick. Big. 342, § 99; Ih. 336, § 10; Carlisle v. Hill, 16 Ala. 398 ; 1 Brick. Big. 251, §§ 123,126. Hypercriticism should not be indulged, in construing bills of exceptions.

2. When an exception is reserved to a charge which contains two or more distinct, or separable propositions, it is the duty of counsel to direct the attention of the court to the precise point of objection. An exception “ to this charge, and to each part thereof, separately and successively,” will be construed as a general exception to the entire charge.— Milton v. Rowland, 11 Ala. 732; Taylor v. Strickland, 37 Ala. 642.

3. Construed as above, we think the charge given is free from error. We agree with the presiding judge, that if the ox was seen by the engineer, “ within ten or fifteen feet of the road, or running close by the road-bed, on a line with it, and within a few feet of the road and train as it was moving, and under circumstances indicating danger of its getting on the track; then it was the duty of the engineer, to use all means in his power to frighten away the ox, until the danger had ceased.” The reason on which accountability rests, in such case, is, that no one shall do another an injury, either wantonly, or through negligence. Reasonable diligence and care must be maintained, in preservation of the property-rights of others. Sic utere tuo, ut alienum non laidas. The engineer, if lie saw the ox in dangerous proximity to the track, and under circumstances indicating danger of its getting on the track, should have taken steps promptly to frighten him away; or, if need be, should have arrested the motion of his train, if possible, rather than incur the hazard of destroying another’s property. He should not have waited for the ox to get on the track, if there was apparent danger of his doing so. The charge given fairly submitted to the jury the question of the engineer’s negligence.

What we have said is decisive to show that the charge asked should not have been given. It placed the engineer’s duty on too narrow and technical a foundation.

’The .judgment is affirmed.