
    Central Railroad & Banking Co. v. Roquemore.
    
      Action against Railroad Company for Killing Stock.
    
    1. General charge on the evidence; when should be refused. — A written charge to the jury, requested by the defendant, that “if they believe the evidence they must find for the defendant,” should be refused, when a demurrer by the defendant to the evidence could not properly be sustained.
    Appeal from the Circuit Court of Barbour.
    Tried before the Hon. J. M. Caemichael.
    Action by Albert Roquemore against the Central Railroad and Banking Company of Georgia to recover damages for the negligent killing of the plaintiff’s cow.
    The evidence for the plaintiff tended to show that on December 12, 1890, at a point a short distance west of the Ho-boken tank on the defendant’s railroad, the plaintiff’s cow was killed by a west-bound passenger train which was moving at a high rate of speed; that the cow came out of a field south of the track and in attempting to cross the track was struck by the train and killed; that the track was straight for the distance of a quarter of a mile east of the place where the cow was killed, and that there were no obstructions to cut off the engineer’s view south of the track; and that the engineer neither sounded the whistle nor rung the bell before the cow was struck. The testimony of the locomotive engineer, who was examined as a witness for the defendant, tended to show that the track was straight from Ho-boken to the tank, but curved to the right just about the tank, which was on the right or north side of the road; that the tank obstructed his view ahead to the point where the cow Avas killed, until he got opposite the tank; that Avhen he reached the tank; he saAv the cow eight or ten feet south of the track and about one hundred feet ahead of the engine; that the cow started toward the track, and he reversed the engine and applied the brakes to stop the train, but that it was impossible to stop tlie train after be saw tlie cow and before striking it; that be did not ring tbe bell or blow tbe wliistle after be saw tbe cow, because be did not bave time to reverse tbe engine and put on brakes and also ring tbe bell or blow tbe wliistle. Upon tbe introduction of all tbe evidence, tbe defendant in writing requested tbe court to «barge tbe jury, that “if they believe tbe evidence they must find for tbe defendant.” Tbe refusal of tbe court to give this charge is now assigned as error.
    Roquemoke, White & McKenzie, for appellant.
    S. H. Dent, contra.
    
   COLEMAN, J.

This was an action to recover damages for tbe negligent killing plaintiff’s cow. Tbe only error assigned is the refusal of tbe court to give tbe general affirmative charge for tbe defendant. This charge should never be given, except in cases where, if tbe party who requests tbe charge bad demurred to tbe evidence, the court could bave properly sustained tbe demurrer. — Freeman v. Scurlock, 27 Ala. 411; 1 Brick, p. 335. Tbe effect of a demurrer to evidence is an admission by the party demurring of tbe truth of tbe evidence demurred to, and of every inference and conclusion which a jury could legally deduce therefrom. — Code, § 2747; Curtis v. Daughdrill, 71 Ala. 590 ; Armstrong v. Armstrong, 29 Ala. 541; 1 Brick. 888, § 1146. If, instead of asking tlie general charge, tbe defendant bad demurred to plaintiff’s evidence, the court could not bave legally sustained tbe demurrer.

It follows from tbe foregoing well established principles of law, that tbe court did not err in refusing tbe charge as requested.

Affirmed.  