— The testimony of plaintiff, in the court below, tends to show that, in less than six months after the injury was done, he made out his claim in writing, and presented it to one Smith, who was known as “ Governor Smith that Smith received it, and promised to forward it to headquarters; thatjie, Smith, subsequently told witness he had forwarded the said claim to headquarters, and that he would, on his next trip, pay plaintiff for the horse the train had killed. There was testimony tending to show that Smith had charge of the railroad’s supply-train; that he held himself out as the agent of the road, to whom claims for damage to stock should be presented; and that he had received presentation of claims for damage to stock, and had paid the same. There was testimony, on the other hand, tending to prove that Smith had no *280authority to receive presentation of claims, but that his only authority was to adjust and pay claims which were referred to him by higher officers of the railroad company. If the version of the plaintiff and his witnesses be the true one, then this was sufficient evidence to be left to the jury, whether or not there had been a presentation ;n writing made to the railroad within six months after the injury was done. — S. & N. R. R. Co. v. Brown, 53 Ala. 651; E. T, Va. & Ga. R. R. Co. v. Bayliss, 74 Ala. 150. The second charge asked by defendant was properly refused.
That portion of the affirmative charge which was excepted to, has this language: “If the plaintiff presented his claim, in writing, for the damage done to his stock, within six months after it was done, to the ‘Gov. Smith’ mentioned by the witness, who was on the train of defendant, and was often known to settle such claims,” &c. The italics are our own, and are simply intended to call attention to that part of the charge. The words italicised are not stated as hypothesis, nor was the inquiry of their truth submitted to the jury. A charge given in this form, where the testimony is oral, and only tends to prove the facts, can not be sustained. — McDougald v. Rutherford, 30 Ala. 253 ; Jones v. Fort, 36 Ala. 449; Ross v. The State, 74 Ala. 532.
The only witness who spoke of the circumstances attending the killing of the horse, was the engineer in charge of the train. If his testimony be true, there was no negligence on the part of the railroad company, or its employees. If there was not other testimony bearing on this question, the general charge — the one first asked by defendant — ought to have been given. — Ala. Gt. So. R. R. Co. v. McAlpine, 75 Ala. 113. There was testimony, however, tending to show that Smith was the agent of the company for the adjustment of claims of-this class, and that he admitted its'justness, by promising to pay it. This was the testimony of the plaintiff, and it does not appear to have been contradicted. Whether contradicted or not, it justified the refusal to give the first charge asked.
Reversed and remanded.