Southern Railway Co. v. Smith

SIMPSON, J.

This is an action for damages on account of the death of the six year old child of the plaintiff (appellee here), caused by its being run over by defendant’s train of cars at or near Larkinsville, Ala. The case has been before this court twice before.—Southern Railway Company v. Smith, 163 Ala. 174, 50 South. 390, and Id., 173 Ala. 697, 55 South. 913.

On this trial, all of the counts of the complaint, except count 4, were eliminated; and the first insistence of the appellant is that the general affirmative charge should have been given for the defendant.

*370 While it is clear from the evidence, as held in this case on former appeals, that the child ivas a trespasser on the track, and the defendant owed him no duty, save to avoid injuring him after discovery of his peril, yet the facts were before the jury as to the distance from the station to the place of the injury, the straightness of the track, the speed at Avhich the train was moving, and the distance Avithin which the train could be stopped, the preventive efforts which were used, and as to AAdiether or not any alarm Avas sounded. It Avas therefore for the jury to say Avhether or not the engineer did see the child in time to have prevented the injury by the use of the proper means. We adhere, then, to the ruling made Avhen this case Avas last before this court, that there Avas no error in the refusal to give the general affirmative charge in favor of the defendant.

The court cannot be placed in error for refusing to give charge 4. While it is true that such a charge, given by the court, was approved by the Supreme Court of Michigan (Lovely v. Grand Rapids & I. Ry. Co., 137 Mich. 653, 100 N. W. 894), yet, Avithout deciding whether the court would have been justified in giving said charge, under our decisions the court cannot be required to give such a charge, as it unduly emphasizes a part of the evidence, and is argumentative.—Bancroft v. Otis, 91 Ala. 279, 291, 292, 8 South. 286, 24 Am. St. Rep. 904; Crawford v. State, 112 Ala. 1, 27, 21 South. 214; Teague v. State, 144 Ala. 42, 44, 49, 40 South. 312; Austin v. State, 145 Ala. 37, 38, 40, 40 South. 989; Davis v. State, 152 Ala. 82, 84, 86, 44 South. 545.

Charges 1, 2, 9, and 14, requested by the • defendant, Avere abstract, as all questions about the duty to look out Avere eliminated by confining the issue to count 4; and charge 10 Avas covered by charges 5, 6, and 7, given at the request of the defendant.

*371 There was no error in admitting the testimony of Mrs. Dave Doavels as to what Wilson, the engineer, said shortly after the injury, to the effect that he kept thinking the child avovlM get off the track until after it Avas too late. It is true that this testimony was not admissible as a part of the res gestae to show Ixoaa" the injury occurred ; but the evident purpose of introducing it Avas to show statements made by the Avitness, contrary to what lie had stated on the stand. A predicate Avas laid for the introduction of the testimony for that purpose; and no objection Avas offered on account of the insufficiency of the predicate, but only on the ground that it Avas not a part of the res gestae, Avhich, as shOAvn, was not apposite.—Jones v. State, 141 Ala. 55, 58, 37 South. 390.

The judgment of the court is affirmed.

Affirmed.

All the Justices concur.