Southern Ry. Co. v. Pogue
| Decision Date | 04 April 1906 |
| Citation | 40 So. 565,145 Ala. 444 |
| Parties | SOUTHERN RY. CO. v. POGUE. |
| Court | Alabama Supreme Court |
Appeal from City Court of Gadsden; John H. Disque, Judge.
"To be officially reported."
Action by B. M. Pogue against the Southern Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.
This was an action by appellee against appellant for killing by appellant's train of a horse belonging to appellee. The original summons and complaint contained two counts and were in the name of Mrs. J. L. Pogue. The complaint was afterwards amended by changing the initials, of the plaintiff, to "Barnett M.," thus making the plaintiff's name "Barnett M. Pogue" instead of "J. L. Pogue." There was objection by defendant to this amendment, and the objection was overruled. These facts appear only in the minute entry, and were not set out in the bill of exceptions. There were several pleas not necessary here to be set out, and issue was joined on the general issue. The facts sufficiently appear in the opinion.
The plaintiff requested the following charge: Charge 3: "The court charges the jury that, if they are reasonably satisfied from the evidence that the horse was killed by reason of the engineer running the train at such rate of speed that it could not be stopped within the distance the horse could be seen by the use of the headlight, they will find for the plaintiff."
The defendant requested the following written charges, which were refused: First. General affirmative charge. Charge 2 "The court charges the jury that if the mare ran on the track suddenly from the woods, so near the engine that it was impossible to stop the train before the mare was struck, by the use of all the means used by well-regulated railroads then your verdict should be for the defendant." Charge 3: "The court charges the jury, if the mare ran on the track suddenly from the woods, so near the engine that it was impossible to stop the train before the mare was struck, by the use of all means used by a well-regulated railroad, then the engineer was not required to do anything to stop the train." Charge 4: "The court charges the jury, if the jury believe from the evidence that the mare came suddenly on the track, so close to the engine that the engineer could not stop in time to prevent running over her her destruction cannot be ascribed to defendant's negligence, and in that event their verdict should be for the defendant." Charge 5: "The court charges the jury that if they find that the mare rushed suddenly from the woods on the railroad track, so near to the engine that it could not have been stopped in time to have avoided injuring the mare by the use of all the means used by a well-regulated railroad, then your verdict should be for the defendant." Charge 6: "The court charges the jury the fact that the engineer could not see beyond 40 or 50 yards with the headlight he had cannot make the defendant liable in this case, if the jury believe from the evidence that the mare, after she got on the track, was never beyond 40 yards from the engine." Charge 7: "The court charges the jury, if the mare ran suddenly on the track from the woods, so near the engine that it was impossible to stop the train before the mare was struck, by the use of all the means used by well-regulated railroads, then the engineer was not required to do anything to stop the train, and the plaintiff could not recover." Charge 8: "The court charges the jury that if they find that the mare rushed rapidly from the woods onto the railroad track, so near the engine that it could not have been stopped in time to have avoided injuring the mare by the use of all the means used by well-regulated railroads, it would make no difference whether the engineer could see more than 40 or 50 yards by the headlight, and in that event your verdict should be for the defendant."
There was verdict and judgment for plaintiff for $98.
Burnett Hood & Murphree, for appellant.
Cullie & Martin, for appellee.
The counts of the complaint are the same as those in Southern Railway Co. v. Hoge (Ala.) 37 So. 439, mutatis mutandis, in which case we held that the demurrer, which was substantially as the one here interposed, was not well taken. We see no reason for departing from that ruling.
The objection taken to the allowance of the amendment of the complaint, and the exception reserved thereto, which were necessary to a review of the action of the trial court should be shown by the bill of exceptions. Being shown only by the record of the minutes of the court below, we cannot review that ruling. Bryan v. Wilson, 27 Ala. 214; Tuscaloosa W. Co. v. Mayor and Aldermen of...
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Ex parte Watters
...Ala. 633, 638, 31 So. 555; Commissioners' Court v. State ex rel. So.Ry. Co., 146 Ala. 439, 41 So. 463, and cases cited; So. Ry. Co. v. Pogue, 145 Ala. 444, 40 So. 565. rule is by no means a mere technicality, but is founded upon inherent necessity, and is sanctioned by universal experience.......
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Key v. Goodall, Brown & Co.
... ... particular, however, is not shown by the bill of exceptions, ... but only by the record of the minutes of the court. So ... Ry. Co. v. Pogue, 145 Ala. 444, 40 So. 565 ... The ... objections to the questions, seeking to show a novation and ... acceptance of another, in lieu of ... ...
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Atlantic Coast Line R. Co. v. Horn
...charges properly instructed the jury as to the rule of proximate cause. Appellee calls our attention to the case of Southern R. Co. v. Pogue, 145 Ala. 444, 40 So. 565. The court held that charge 3, given at the request of the plaintiff, asserted a correct proposition of law. We do not find ......
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Payne v. Hamblin
...impossible to stop the train before the mare was struck. So this was a case in the open country. The court charged the jury in the Pogue case at page 565, 40 So., as follows: "The court charged the jury that they were reasonably satisfied from the evidence that the horse was killed by the e......