This case went to the jury on the third or wanton count alone, and there was sufficient evidence to justify the submission to them and to support the verdict for the plaintiff under said count. True, the speed of the train alone at the point in question did not constitute wantonness, but when accompanied with evidence showing that the point of injury was a populous crossing, and that people were in the habit of crossing with great frequency at this time of year and hours of the day, and that the train was operated without signal or warning, there being proof from which the jury could infer that the enginemen were conscious of conditions and probable injury, the plaintiff made a case for the jury, and the defendant was not, therefore, entitled to the general charge as to said count. The evidence was in conflict, but the verdict was not so contrary to the great weight of same as to warrant this court in putting the trial court in error for overruling the defendant's motion for a new trial.
There was no error in refusing the defendant's requested charge 6. It submitted a question of law to the jury. Nor was there error in refusing defendant's requested charge 13. It instructed a finding against the plaintiff if the bell was rung and pretermits blowing the whistle. The defendant's servants may have rung the bell and not blown the whistle, and the latter may have been more efficacious as a warning. Moreover, the defendant got the full benefit of the defense embodied in these charges, both in the oral charge of the court and by special charges given at its request. See given charges 9 and 5.
The judgment of the circuit court is affirmed.
Affirmed.
SAYRE, GARDNER, and MILLER, JJ., concur. *Page 437