The charges requested by defendant should have been given. — Louisville & Nashville Railroad Co. v. Brinkerhoff, 119 Ala. 606, 24 South. 892.
Reversed and remanded..
Tyson, Simpson, and Anderson, JJ., concur.ON REHEARING.
WEAKLEY, C. J.The late Chief Justice was not entirely satisfied with the above opinion, nor with his opinion in L. & N. R. R. Co. v. Brinkerhoff, 119 Ala. 606, 24 South. 892, in so far as it held the fifth charge, requested by the defendant, in that case should have been given. XÍpon his own motion he caused this case to be placed on the rehearing docket for further consideration by the full court. This opinion expresses the views of all the judges, and is written after a conclusion first reached in general conference.
The evidence was conflicting as to the distance the horse had run upon or along the track in front of the train, and inferences might be drawn from the whole evidence which would authorize a recovery by the plaintiff, while other inferences that might be drawn, and some positive evidence, if believed, would entitle the defendant to a verdict. The evidence of defendant's witnesses tended' to support the hypotheses of the first charge which it requested, and which was refused. The charge was not, therefore, abstract. It asserted a correct proposition of law, based upon a finding of the facts as hypothesized and should have been given. If the jury found the facts as postulated, in the charge, the accident was unavoidable.- — Choate v. Sou. Ry., 119 Ala. 611, 24 South. 373 ; Anderson v. Birmingham Mineral Ry. Co., 109 Ala. 128, 19 South. 519.
The second charge refused to the defendant would have required a verdict in its favor upon a finding mere*435ly that the horse came suddenly upon the track so close, in front of the train that the accident could not then be avoided, without any finding that the engineer had observed the duty of keeping a lookout, and although the animal might have been sooner discovered in dangerous proximity to the track by the exercise of proper diligence, and although the train might not have been properly equipped. The charge is in substance the same as the 5th charge requested by defendant in L. & N. R. R. Co. v. Brinkerhoff, 119 Ala. 606, 24 South, 892, and which this court there declared should have been given. The testimony in that case and this as to a lookout having been maintained, and as to the inability to sooner discover the animal’s perilous position, and as to the. proper equipment of the train, was furnished by witnesses examined upon the trial. The credibility of the testimony was for the jury. Its truth could not be assumed by the court. The effect of the charge was to pretermit any inquiry into these material considerations, bearing upon the question of liability, vel non, and under the circumstances of this case it' was incorrect. It Avas properly refused. The omission of the charge in the particulars mentioned was OArerlooked in Brinkerhoff’s Case, supra. Indeed, the ruling there conflicts with previous decisions of this court not there cited.. In S. & W. R. R. Co. v. Jarvis, 95 Ala. 149, 10 South. 323, a charge asked by defendant Avas in the folloAving language: “If the jury believe from the evidence that the animal came doAArn the side of a cut from behind an obstruction about 40 yards in front of the approaching train, they must fincl for the defendant.” If aaus pronounced- “too meager,” Clopton, J., saying: “That the engineer could not haA'e sooner discovered the cow, because of the obstruction, should have been embraced in the hypothesis.” See also, N. C. & St. L. R. Co. v. Hembree, 85 Ala. 481, 5 South. 173. The case of L. & N. R. R. Co. v. Brinkerhoff, 119 Ala. 606, 24 South. 892, upon the proposition under consideration must be overruled.
A comparison of the tAvo charges asked by the defendant beloAV Avill show the essential difference betAveen. them; the first liaA'ing been framed on correct legal prin-. *436eiples, and the second being unsound and erroneous.— Central of Ga. Ry. Co. v. Turner, 145 Ala. 441, 40 South. 355. It -still results that, notwithstanding this modification of the previous opinion, the judgment must be reversed, and the cause remanded for the error committed in refusing the first charge.
Reversed and remanded.
All the justices concur.