Tuscaloosa Belt Ry. Co. v. Fuller , 153 Ala. 288 ( 1907 )

ANDERSON, J.

— There was evidence from which the jury could infer that the horse was backing towards the track after Robert Fuller had gotten to his head, and that the engineer saw the situation, and that the horse was not under control. If the engineer discovered that plaintiff ivas in a perilous position, and could have stopped the train before the collision, and failed to do so, then the defendant was guilty of negligence. The plaintiff testified that the engineer saw his horse backing towards defendant’s track when the train was 25 or 30 .yards off, and the defendant’s witness George Sullivan testified that the train could have been stopped within the space of 35 or 40 feet. It was therefore a question for the jury to determine whether or not the engineer discovered the plaintiff and his horse and buggy in a perilous position, and if he could have stopped the train in time to avoid the collision and negligently failed to do so. The trial court did not err in refusing charge 1, the general charge, requested by the defendant.

Charge 2, requested by the defendant, was properly refused. The defendant’s servants could have been guilty of negligence in failing to stop the train after it passed Hill’s Station.

Charge 3, requested by the defendant, was in effect the general charge, and was properly refused.

No error is insisted upon in brief of appellant’s counsel as to the trial court’s failure to grant a new trial.

The judgment of the county court is affirmed.

Tyson, C. J., and Haralson and Simpson, JJ., concur.