The writ of certiorari to the Court of Appeals will be granted for the reason indicated in subdivision 3.
1. Did the Court of Appeals err in striking assignment of error numbered 9, based upon an exception to a portion of the oral charge of the court shown only in the record proper, not in the bill of exceptions? Under the statute of 1915 (pages 815, 816), it was made unnecessary "to set out the charges in the bill of exceptions or state therein that an exception was reserved to the giving or refusing of charges requested, but it shall be presumed that each charge was separately requested and a separate exception reserved as to the giving or refusal thereof." The further provision therein that the general charge "shall be in writing, or be taken down by the court reporter as it is delivered to the jury," or other provision of the act does not relieve the party excepting to any portion of the general charge of specifically indicating the same to the court during the trial, and to make such part to which exception is reserved a part of the bill of exceptions by incorporating therein such exception. This is the effect of our recent cases. Ex parte Mobile L. R. Co., 201 Ala. 493, 78 So. 399; Britton v. State, 15 Ala. App. 584, 74 So. 721; McPherson v. State, 198 Ala. 5, 73 So. 387; Russell v. State, 201 Ala. 572,78 So. 916, 918; Pan-Amer. Life Ins. Co. v. Carter,202 Ala. 237, 80 So. 75; Sloss-Sheff. S. I. Co. v. Yancey,202 Ala. 458, 80 So. 842.
2. We find no reversible error in the discussion of pleadings by the Court of Appeals having application to Code, §§ 5653, 5654. A proper construction of the plea to which demurrer was overruled cannot be had since the same is not before us, and no opinion is expressed as to its sufficiency.
3. On demurrer all pleading must be tested by its weakest averments. Nat. Park Bank v. L. N. R. R. Co., 199 Ala. 192,74 So. 69; G., F. A. Ry. Co. v. Sharpe, 202 Ala. 530,76 So. 856. Plaintiff's "special replication to plea No. 2" was subject to demurrers interposed. It was in effect that the fence erected along a definite right of way "was defective and not so constructed as not to prevent said mule from going over the same." Defendant was not required by law to construct its fence and "cattle guard" at the place in question with a view to restraining plaintiff's mule or any particular mule that was injured; on the contrary, the duty of defendant company in the premises was only to construct and maintain such a fence and cattle guard as to be reasonably sufficient to restrain ordinary stock, including mules in general. A. B. A. L. Ry. Co. v. Brown, 158 Ala. 607, 48 So. 73, 36 L.R.A. (N.S.) 998, note; Martin v. A., T. S. F. Ry. Co., 92 Kan. 595,141 P. 599, L.R.A. 1915B, 134; Stewart v. Bloomington, etc., Co., 180 Ill. App. 608; Midland Valley R. Co. v. Bryant,37 Okl. 206, 131 P. 678; Comings v. Hannibal C.M.R. Co.,48 Mo. 512; N.C. St. L. Ry. Co. v. Russell, 129 Ky. 14,110 S.W. 317.
A rational statement of the general rule as to the sufficiency of fences and cattle guards along and on the right of way of a railway company is contained in 33 Cyc. 1201, as follows:
"Cattle guards to be sufficient need not be so constructed as to constitute an impassable barrier so that under no circumstances could an animal cross them, or so as to turn stock which are wild, breachy, or in the habit of fence jumping, or when under fright or excitement, but need only be such as are reasonably sufficient to turn ordinary stock; and if an animal goes upon the track by jumping over such a cattle guard and is injured the company will not be liable in the absence of negligence."
The intimation in S. A. L. Ry. Co. v. Wright, 148 Ala. 27,29, 41 So. 461, 462, tends to support the foregoing text. It is:
"The fourth plea to which a demurrer was sustained neither traverses nor confesses and avoids the averments of the complaint. It contains no averment that the guards erected and maintained by defendant were reasonably sufficient for the purpose for which they were erected. Non constat, they may be wholly insufficient, as alleged in the complaint; and clearly, if they are, the fact that they are in use by all well-regulated railroads does not and cannot exempt the defendant from liability for a violation of the duty which it owed the plaintiff."
See, also, 43 L.R.A. (N.S.) 457, note.
The third ground of the demurrer to special replication should have been sustained.
The writ of certiorari is granted.
ANDERSON, C. J., and McCLELLAN, SOMERVILLE, and BROWN, JJ., concur.
SAYRE and GARDNER, JJ., dissent.
On Rehearing.