Opinion
7 Div. 973.
June 27, 1918.
Appeal from Circuit Court, St. Clair County; O. A. Steele, Judge.
Embry Embry, of Ashville, and Tillman, Bradley Morrow and T. A. McFarland, all of Birmingham, for appellant. S.W. Tate, of Anniston, for appellee.
Without determining the sufficiency of the complaint, it is sufficient to say that the record discloses no ruling upon the demurrers interposed thereto.
The charges embraced in assignments of error 4, 5, and 6 attempted to inject negligence on the part of the plaintiff, which had not been pleaded, and are unlike the charge held good in the case of A. G. S. R. R. Co. v. Bell, 76 So. 920. Moreover, if by the use of the word "sole" cause it was not intended to invoke the doctrine of contributory negligence, but to request a finding for the defendant unless its negligence, and not something else, was the cause of the injury, the defendant got the full benefit of said charges under the oral charge of the court, as the court, in effect, charged the jury that the defendant's negligence must have caused the injury before it would be liable to the plaintiff.
There was no error in refusing the charge made the basis of appellant's seventh assignment of error. If not otherwise bad, it was at least misleading, as the jury could infer therefrom that, if the station and appurtenances were constructed and maintained with ordinary care, they must find for the defendant. True, the word "maintain" is one of broad meaning; but the average jury might not take it as including the proper lighting of the premises. Moreover, this charge ignores count 1 of the complaint, to which no demurrer was sustained.
The charge made the basis of the eighth assignment of error ignores count 2 of the complaint, and for reasons hereinafter brought out the defendant was not entitled to the general charge as to said count 2.
There was no error in refusing the defendant's requested charge, dealt with in the ninth assignment of error. It might not be negligence for the defendant to have failed to provide a light on the platform, or steps leading to the freight room, if the point was sufficiently lighted from another point or place; but it would doubtless be negligence to fail to provide a light at the place hypothesized, if not sufficiently lighted from another point or place.
The charge embraced in assignment of error 10, if not otherwise faulty, seeks to define plaintiff's conduct and duty, which was not made an issue in the case.
There was no error in refusing the general affirmative charge as to count 2. We cannot, as matter of law, say that the steps were not negligently erected, as the trial court and jury had evidence not available to us. They examined photographs of the scene, and counsel has referred to same; but they are not before this court. Dancy v. Ratliff, 201 Ala. 162, 77 So. 688.
There was no error in overruling the motion for a new trial. The judgment of the circuit court is affirmed.
Affirmed.
McCLELLAN, MAYFIELD, and THOMAS, JJ., concur.