Wetzel v. Birmingham Southern R. Co.

Plaintiff (appellant) was injured in a collision between the automobile he was driving and a locomotive engine drawing a train on defendant's railroad. The place of the accident was a public road crossing on a curve where the engineer could not see one-fourth of a mile ahead. In these circumstances the trial court erred in giving charge N at defendant's request. This charge misplaced the burden of proof. Code, §§ 5473, 5476; Billingsley v. N.C. St. L. Ry., 177 Ala. 346, 58 So. 433. And had the charge not been faulty in the respect pointed out, it should have been refused for the reason that, under our decisions, it would have exacted too high a degree of proof. Torrey v. Burney, 113 Ala. 496, 21 So. 348; Lawrence v. Ala. State Land Co., 144 Ala. 524, 41 So. 612; Miller v. Whittington, 202 Ala. 406, 80 So. 499, where a number of cases are cited.

Charges 41 and O should have been refused. It was legally possible under the evidence that the jury should find that defendant's engineer had been guilty of wantonness, even though he did sound signals of approach. Charge N2 is open to the same criticism.

Charge 25, given for defendant, does not define the degree of care required of an engineer after he discovers a person in peril as it has been defined in the decisions of this court. Brown v. Central of Georgia, 197 Ala. 71,72 So. 366.

Reversed and remanded.

ANDERSON, C. J., and GARDNER and BROWN, JJ., concur.