Opinion
6 Div. 618.
March 18, 1926.
Appeal from Circuit Court, Jefferson County, Bessemer Division; O. A. Steele, Judge.
Huey Welch, of Bessemer, for appellant.
The affirmative charge for defendant should have been given. Nor. Ala. R. Co. v. White, 69 So. 308, 14 Ala. App. 228; M. L. R. Co. v. Roberts, 68 So. 815, 192 Ala. 486; Hayes v. A., B. A. R. Co., 84 So. 556, 17 Ala. App. 220. Charge 6 was erroneously refused to defendant. Central of Ga. R. Co. v. Pittman, 80 So. 141, 16 Ala. App. 567; Central of Ga. R. Co. v. Brister, 40 So. 512, 145 Ala. 432.
McEniry McEniry, of Bessemer, for appellee.
The evidence of the engineer was disputed, hence the affirmative charge was properly refused. Atlanta St. A. B. R. Co. v. Hodges, 94 So. 252, 19 Ala. App. 42. Charge 6 was covered by the oral charge and charges given for defendant.
It may be conceded that the plaintiff made out a prima facie case; yet, if the evidence of the engineer was true, the defendant was entitled to the general charge. It may also be conceded that the evidence of some of the witnesses, as to the tracks, was sufficient to afford an inference that it was untrue, so as to prevent the general charge for the defendant; still it was at least entitled to have its defense, with the hypothesis, submitted to the jury as embodied in refused charge 6. Central of Ga. R. R. v. Brister, 40 So. 512, 145 Ala. 432; Central of Ga. R. Co. v. Pittman, 80 So. 141, 16 Ala. App. 567, and cases cited. We do not find that this charge was so substantially covered by the defendant's given charges, or the oral charge, as to avoid a reversal of this case.
The judgment of the circuit court is reversed, and the cause is remanded.
Reversed and remanded.
SAYRE, GARDNER, and MILLER, JJ., concur.