Newsome v. Louisville N. R. Co.

A report of this case on former appeal may be found in 20 Ala. App. 349, 102 So. 61. The facts necessary are there stated. On this appeal there are but three assignments of error insisted upon in brief and they alone will be considered.

The first assignment of error relates to the refusal of the court to give at the request of plaintiff the following charge:

“I charge you that the plaintiff in this cause may recover under the third count, if from the evidence the jury finds that he is entitled to recover, notwithstanding you may find from the evidence that the engine was neither emitting an…