We are of the opinion that this case should be affirmed. We think that the evidence afforded an inference for the jury that the defendant was guilty of negligence, whether the train was started suddenly or violently or not as hypothesized in the defendant’s refused charge, and for which plaintiff could recover under the fourth count.

We also think that the verdict was not so palpably contrary to the overwhelming weight of the evidence as to justify the reversal of the trial court for declining to grant the motion for a new trial.—Cobb v. Malone, 92 Ala. 630, 9 South. 738.

Affirmed.

(dissenting). — The charge requested by defendant and made the subject of the first assignment of error should have been given. The complaint on which the case was submitted to the jury contained but two counts, viz., those numbered 1 and 4. Count 1 stated a case substantially according to the hypothesis of the charge. Count 4 alleged in the most general terms negligencce in the conduct of defendant’s business; but it is not denied, is in fact virtually conceded in appellee’s brief, that plaintiff relied on the testimony tending to establish the case hypothesized in the charge. There was therefore but one question to be decided by the jury, and that was whether plaintiff had made out a case according to the hypothesis of the charge. If plaintiff did not make out such a case, defendant was entitled to a verdict, and this, nothing more, was the assertion of the charge.

Appellee indeed recognizes that his case is in the posture indicated, acknowledges, by passing the matter sub silentio, that a statement by the court to the jury of the substantial proposition of the charge was due to defendant, but seeks to excuse the court’s refusal to give it on two grounds: (1) The charge was bad in form; (2) the charge was not requested before the jury retired. Neither proposition can be sustained.

Appellee cites a number of cases in which it was held that a charge predicating a verdict for defendant on particular counts is bad in form, inapt, confusing, where there are other counts upon which plaintiff might recover under the evidence.—Kress v. Lawrence, 158 Ala. 652, 47 South. 574, and cases there cited. Those adjudications are not in point. Here counts 1 and 4 constituted the entire complaint as it was at the time of its submission to the jury. Construed in connection with the evidence, these - counts stated the same case. *69The substantive proposition of the charge was correct, the charge in form was free of confusing tendencies, and there was reversible error in its refusal.

Appellee argues that the bill of exceptions fails to show that the charge under review was requested and refused pending the trial and before the jury retired. The bill recites a request in writing for the charge at issue, its refusal, and that defendant duly excepted. Bills of exception are construed most strongly against the ex-ceptor, and in some cases it has been said that it must affirmatively appear that charges under review were requested before the jury retired. But we apprehend that a court seeking to review cases and give judgment according to the substantial rights of the parties will not resort to a narrow, technical, and strained construction of the record in order to affirm or reverse. Without impugning the authority of those cases upon which appellee relies, we are of the opinion that the bill of exceptions in this case, fairly construed, means that defendant requested its charge and excepted to its refusal in the proper manner and at the proper time, that is, duly —as the bill affirms — otherwise the bill in its shape would not have been signed by the presiding judge.

I will not go into the facts of the case further than to say that on his own testimony plaintiff showed hardly more than the glimmer of a case, and that the defense was abundantly sustained by witnesses offered by the plaintiff as well as by those who testified on behalf of the defendant. The record, in my judgment, shows a meritorious case for reversal. In this view Mayfield, J., concurs.