"(1) The presiding judge erred in charging the jury as follows: 'It is the duty of the railroad company to look out for people on its track, and, if the company discovers a person on its track, it is the duty of the people in charge of that car to use the highest degree of care, to use every available means in their power to stop the car to prevent the taking of human life, if they can do so without endangering other passengers on their car'—the error being that it is not the general duty of a railroad company to keep a lookout for people on its track. And the said charge placed a higher duty on the defendant after discovering a person on the track than the law requires, was misleading to the jury, harmful and prejudicial to the rights of the defendant.
"(2) The presiding judge erred in charging the jury: 'When a person is on the crossing, they owe him the duty of ordinary care, and. of course, that is a stronger term than willfully not to injure him'—the error being that said charge placed upon the defendant a greater duty than was possible for it to perform, was misleading and confusing to the jury, and prejudicial to the defendant's rights.
"(3) The presiding judge erred in charging the. plaintiff's third request, especially the following part thereof: 'But people lawfully upon a public highway at a railway crossing are not trespassers, even though they are lying down thereon, in a helpless, drank condition, and the railroad under these circumstances would be bound to exercise greater care to such person than if he were a bald trespasser'—the error being that a person under such circumstances would be a trespasser, and the defendant would owe him no duty except not to willfully injure him after discovering him in that position. Furthermore, said request was a charge on the facts, in that it instructed the jury what facts would not constitute a trespasser, contrary to the provision of the Constitution which inhibits the presiding judge from charging on the facts.
"(4) The presiding judge erred in charging plaintiff's fourth request, especially that portion thereof which charges that if the motor-man 'sees or could have seen an object on the track that from all appearances may bea human being, unable to avoid danger, it is his duty to resolve all doubts in favor of the preservation of life, and to immediately use every available means, short of imperiling the lives of his passengers, to stop the car in time to avoid the injury'—the error being that said charge was a charge on the facts contrary to the provision of the Constitution which inhibits the presiding judge from charging on the facts. And said charge was especially harmful because the undisputed proof showed that the plaintiff was down drunk, and asleep on defendant's track at the time he was injured.
"(5) The presiding judge erred in charging plaintiff's ninth request, which was as follows: 'That it is true a drunken person could not be run over by a car, unless he were on the track, yet the fact alone that a person is on a railway track at a public crossing in a drunken and helpless condition need not necessarily be contributory negligence, nor will it necessarily defeat him from recovering damages for his injuries, for, if that were the law, then no drunken person on a railway track could ever recover damages. In such case the law does not bar the person from damages, even though his presence on the railway track in a helpless drunken condition may be due to negligence on his part, for, if the jury believe from the evidence that notwithstanding such person's condition the defendant's motorman could have avoided the injury by keeping a reasonable lookout ahead on the track, but failed to do so, then, if such failure to perform his duty formed the main or proximate cause of the injury without which it could not have happened, you should find a verdict in favor of the plaintiff'—the error being that said request was a charge on the facts, in that it instructed the jury that certain facts would not necessarily constitute contributory negligence, when this was a question of fact entirely for the jury. Furthermore, the said request instructed the jury that, even if plaintiff's presence on the track in a drunken, helpless condition was due to his own negligence, they should still find a verdict for plaintiff if the defendant's negligence formed the main or proximate cause of the injury. Such charge completely destroyed defendant's defense of contributory negligence, and was error.
"(6) The presiding judge erred in charging plaintiff's tenth request, especially so much thereof as charged the jury that, if plaintiff was entitled to recover,. they could compensate him for the damages sustained 'both present and prospective, ' and that they could give him such damages as would equal the difference between what the plaintiff could earn before the injury and what he now earns after the injury over a length of time equal to what you may expect him to live, according to the mortuary table. And in charging the jury that, if they found that the plaintiff was entitled to punitive dam
ages, in arriving at the amount of the verdict 'you have the right to take into consideration the proven wealth of the defendant'—the error being that said charge instructed the jury: (1) That they could enter the field of conjecture and award speculative and uncertain damages; (2) that said charge was a charge on the facts, in that it instructed the jury that they could compute the length of plaintiff's life merely from the time they expected him to live according to the mortuary table, when that table is only so much evidence to be considered in arriving at the length of time plaintiff would live, and thereby instructed the jury that they could enter the field of conjecture in arriving at plaintiff's damage; (3) because, as there was not a scintilla of evidence tending to show the wealth of the defendant, it was error to charge the jury that they could take into consideration the proven wealth of the defendant in forming their verdict if they found plaintiff entitled to punitive damages.
"(7) The presiding judge erred while commenting on defendant's first request in charging the jury: 'Or if his [the plaintiff's] injuries were the result of his own carelessness he could not recover, unless he shows that his injuries were caused by the negligence of the defendant'—the error being that, if plaintiff's injuries were caused by his own carelessness, he could not recover by showing that thes were caused by the negligence of the defendant, because in such case his own contributory negligence would defeat his recovery.
"(8) The presiding judge erred in refusing to charge defendant's sixth request, the error being that as the testimony was not only conflicting, but practically conclusive that the location where plaintiff was injured and the surroundings thereof had been changed at the time the photographs and map offered in evidence were made, and were entirely different from what they were when the injury occurred, the said request stated a sound proposition of law which defendant was entitled to have charged to the jury.
"(9) The presiding judge erred in charging the jury on the subject of 'notice' at the verbal requests of plaintiff's council as follows: 'Mr. Foreman, if a motorman on a car has notice that a person is on the track, it is the duty of the motorman to watch out for him, it is his duty to exercise care, when he is notified that a person might be expected to be upon the crossing. Now, if he simply neglects his duty inadvertently, that would be a case of ordinary negligence, to which contributory negligence, if proved, would be a defense, but, if his duty is called to his attention, then he fails to do his duty and injures some one, causes an injury to some one, you have a case of willfulness, to which contributory negligence would not be a defense'—the error being: (1) That as there was no evidence that notice was given the motorman that the plaintiff or anyother person 'might be expected to be on the crossing' where plaintiff was injured, or any other crossing, such charge was misleading, not applicable to the evidence and the law, and was prejudicial to the rights of the defendant. (2) That, as there was no evidence that the motorman's attention was called to his duty, such charge was misleading, not applicable to the law and evidence of the case, and prejudicial to the rights of the defendant. (3) The said charge was a charge on the facts contrary to the...
