Seaboard Air Line Ry. Co. v. Taylor

• Decision Date: 18 December 1913
• Citation: 64 So. 187,9 Ala.App. 628
• Parties: SEABOARD AIR LINE RY. CO. v. TAYLOR.
• Court: Alabama Court of Appeals

64 So. 187

9 Ala.App. 628

SEABOARD AIR LINE RY. CO. v. TAYLOR.

Court of Appeals of Alabama

December 18, 1913

Appeal from City Court of Birmingham; C.C. Nesmith, Judge.

Action by George W. Taylor against the Seaboard Air Line Railway Company, for damages for personal injury and to property. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

The following are the charges given for plaintiff:

"(1) If the jury believe that witness Floyd Spain testified willfully falsely as to any material fact in this case then they are authorized to disregard his entire testimony.

"(2) If the jury believe from the testimony in this case that Engineer Phillips testified willfully falsely as to any material facts in this case, they are then authorized to disregard his entire testimony."

Charge 7, refused to defendant, is that if the jury believe the evidence they cannot find for plaintiff under the seventh count of the complaint as amended.

Tillman, Bradley & Morrow, E.L All, and J.A Simpson, all of Birmingham, for appellant.

John W. Altman, of Birmingham, for appellee.

WALKER P.J.

This was an action by the appellee to recover damages for injuries to his person and property resulting from a collision in a street in the city of Birmingham between a delivery wagon, which he was driving, and an engine of the defendant, which was being operated across the street. In the several counts of the complaint upon which the case went to the jury the injuries complained of were attributed, respectively, to the simple negligence, charged in general terms, of the defendant's servants, agents, or employés in charge of the engine in causing the collision, to their willfully, wantonly, or intentionally doing so, and to the violation of certain municipal ordinances, which were set out, regulating the speed of trains within the city, and requiring in stated circumstances, the use of certain signals and headlights, the flagging of trains, and the keeping of watchmen or flagmen.

The criticism directed in argument against written charges 1 and 2, given at the request of the plaintiff, is based upon their use of the word "authorized," the contention being that that word as it was there used imported such a direction or command to the jury as to what they should do in the event stated as to deprive them of the right or discretion to do otherwise. Neither of the charges is fairly subject to such a criticism. Such a statement to the jury as to what they are "authorized" to do in the event of their finding from the evidence the existence of the hypothesized state of facts is an appropriate way of informing them of the extent of their authority or legal power in such event, and does not suggest or indicate that they are bound to go to the limit of their power or authority, or that they are required to reject any testimony which they find to be credible. Kress et al. v. Lawrence, ...