Birmingham Belt Railroad v. Gerganous

142 Ala. 238

Opinion

ANDERSON, J.

The first assignment of error in this case is based upon the ruling of the trial court, in overruling the demurrers to counts 1 and 3 of the complaint. The demurrers were without merit and were properly overruled.

When the court charges the jury orally and the defendant reserves no exception to any part of the charge, he cannot subsequently complain of same. Nor has it the right to complain that the court gave one of its written charges, even if previously refused and then gave it by the consent of the plaintiff, simply because it did not thoroughly harmonize with the oral charge, and the refusal of the court to modify the oral charge will not work a reversal. If the trial court erred in the oral charge, the defendant could have protected itself by excepting thereto, and failing to do so cannot now claim that it was hurtful. The written charge having been given at the request of the defendant, it cannot complain because the trial court granted the request, and as the oral charge was not excepted to, its correctness is assumed and the refusal of the court to modify same, was not error.

The second or wanton count of the complaint, is in trespass, not case, and involves t'lie affirmative participation of the defendant in causing the injury. There was no evidence that this defendant ran or directed the running of the train in the manner complained of, and as the defendant requested the affirmative charge as to this count, it should have been given. — City Delivery Co. v. Henry, 139 Ala. 161; Central of Ga. Ry. Co. v. Freeman, (Ala.) 37 So. Rep. 387.

• The ruling of the trial court upon the evidence was free from reversible error.

Reversed and remanded.

McClellan, C.J., Tyson and Simpson, J.J., concurring.