Southern Railway Co. v. Hyde

61 So. 77, 183 Ala. 346, 1912 Ala. LEXIS 336

• Court: Supreme Court of Alabama
• Decided: December 17, 1912
• Status: Published

Opinion

DOWDELL, C. J.

— This action is brought under section 2486 of the Code of 1907. The complaint alleges plaintiff’s intestate was killed by being run against by a locomotive, in charge of defendant’s servants or agents, in a public street of the city of Tuscumbia. Count 2 of the complaint sufficiently charged the wanton killing of plaintiff’s intestate. — Central of Ga. R. R. Co. v. Foshee, 125 Ala. 226, 27 South. 1006; A. G. S. R. R. Co. v. Burgess, 116 Ala. 514, 22 South. 913.

Count 4 conforms to the rule laid down in L. & N. R. R. Co. v. Orr, Adm'r, 121 Ala. 498, 499, 26 South. 35, and hence must be held sufficient as charging the wanton killing of plaintiff’s intestate.

Charge 1 on page 79 of the transcript states the law correctly as applied to the facts of this case, and was properly given by the trial court, at the request of the plaintiff in writing. — Stringer v. Ala. Min. R. R. Co., et al., 99 Ala. 403, 408, 13 South. 75.

Charge 2 on page 79 of the transcript invaded the province of the jury, and should have been refused to the plaintiff. The giving of this charge constitutes reversible error.

No reversible error was committed in the giving of charges 3 and 4, given at the plaintiff’s request — page 80 of the transcript.

The general affirmative charge was properly refused to the defendant, upon the whole case and each count thereof. — Southern Ry. Co. v. Hyde, 164 Ala. 170, 51 South. 368. There are numerous assignments of error, many of which are not insisted on; others, treated of in brief of appellant, peculiar to this trial should not, and no doubt will not, arise on the next trial of this case. There are others raising questions decided by this court when this cause was here on the former appeal. We see no good reason for departing from onr rulings therein declared. See So. Ry. Co. v. Hyde, 164 Ala. 162, South. 368.

For error herein pointed out the judgment is reversed, and the cause remanded.

Reversed and remanded.

Anderson, Mayfield, and de Graffenried, JJ., con.cur.