Plaintiff sued to recover damages sustained when his tractor was struck by defendant's train at a crossing. The complaint contained two counts, 1 charging negligence in failing to ring the bell and sound the horn for the crossing, 2 charging negligence in the operation of the train. Judgment was for the plaintiff and defendant appealed.
The Court of Appeals held that the defendant was entitled to the affirmative charge as to Count 1 because of plaintiff's contributory negligence. We are not concerned with that part of the holding.
It was also held that plaintiff was entitled to recover under Count 2 on the theory of subsequent negligence.
Defendant argued in the Court of Appeals and here that the question of subsequent negligence is not involved in this review because the case was tried on the theory of initial negligence of defendant and contributory negligence of plaintiff, and was submitted to the jury only on this theory. The Court of Appeals disagreed and quoted from the record as follows:
The record further shows that in his oral charge, the court instructed the jury:
The Court of Appeals then stated:
With this we cannot agree.
The first three quoted statements show on their face to have been made in the settlement of the pleadings. The statements merely show that defendant intends to rely on subsequent contributory negligence if plaintiff relies on subsequent negligence. The record affirmatively shows that this colloquy took place before the jury was qualified. Certainly, it takes more than this to support a finding that the case was actually tried on the theory of subsequent negligence.
The other extracts from the opinion of the Court of Appeals are from the oral charge of the court. The first is a correct statement and could cover simple negligence or subsequent negligence, but the statement alone cannot be held to be a charge on the issue of subsequent negligence.
The second extract from the charge contains a definition of simple negligence. The first sentence—"There is another kind of negligence"—indicates that the court had just finished speaking of some other type of negligence. We have gone to the record to see if that statement could possibly have been reference to subsequent negligence. Where there is no dispute about the facts (here, the only issue is the content of the court's oral charge), we examine the record on certiorari for a more complete understanding of those features of it which are treated. Cranford v. National Surety Corp., 231 Ala. 636, 166 So. 721; Brown v. State, 249 Ala. 5, 31 So.2d 681; Vardaman v. Benefit Ass'n of Ry. Employees, 263 Ala. 236, 82 So.2d 272; Hamm v. State, 264 Ala. 366, 87 So.2d 865. But, the other kind of negligence about which the court had charged was that which arises from a violation of the law, i. e., the failure to sound the proper signals.
There just was no reference in the oral charge to subsequent negligence. The jury is bound by the theory of the law as charged by the judge, and they have no right to depart from it, even though the theory may be erroneous. New Hampshire Fire Ins. Co. v. Curtis, 264 Ala. 137, 85 So.2d 441; or as stated in City of Anniston v. Oliver, 28 Ala.App. 390, 185 So. 187, 190, "It is the duty of the court to declare the law, and it is the duty of the jury to follow the law as given them in charge by the court."
The case of Seaboard Air Line Ry. Co. v. Lowe, 223 Ala. 542, 137 So. 448, 449, is exactly in point. There the court, in reversing the judgment for appellee, stated:
There being no instructions or requested instructions to the jury as to subsequent negligence, we hold that the verdict and judgment cannot be upheld on that theory.
We are not to be understood as holding that the facts as stated by the Court of Appeals would not bring the instant case within the cited cases of Gulf, M. & O. R. Co. v. Sims, 260 Ala. 258, 69 So.2d 449, and Southern Ry. Co. v. Hughes, 267 Ala. 418, 103 So.2d 324, if the cause had been tried and submitted to the jury on the theory of subsequent negligence. The original records of each of those cases show that the question of subsequent negligence was fully and comprehensively covered in the oral charge of the trial court.
In view of the foregoing, it is unnecessary for us to discuss petitioner's argument that since the Court of Appeals held that it was entitled to the requested affirmative charge as to Count 1, it was reversible error to receive a general verdict as to both counts because the verdict could very possibly have been based upon Count 1.
The judgment of the Court of Appeals is reversed and the cause is remanded.
Reversed and remanded.
All the Justices concur.