Birmingham Railway, Light & Power Co. v. Walsh

Alabama Court of Appeals

Birmingham Railway, Light & Power Co. v. Walsh

60 So. 951, 6 Ala. App. 635, 1913 Ala. App. LEXIS 245

CourtAlabama Court of Appeals

DecidedJanuary 14, 1913

StatusPublished

Cited by1 cases

This text of 60 So. 951 (Birmingham Railway, Light & Power Co. v. Walsh) is published on Counsel Stack Legal Research, covering Alabama Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Birmingham Railway, Light & Power Co. v. Walsh, 60 So. 951, 6 Ala. App. 635, 1913 Ala. App. LEXIS 245 (Ala. Ct. App. 1913).

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Opinion

PELHAM, J.

The charges assigned as error cannot operate to work a reversal in this case on the principle as declared in the cases of Frierson v. Frazier, 142 Ala. 232, 37 South. 825, and Alabama Steel & Wire Co. v. Thompson, 166 Ala. 468, 52 South. 75; for while these charges ignore the defense presented by the defendant’s special plea, the evidence shows beyond controversy that this plea failed, as there was no proof adduced upon the trial to support it. If there had been any evidence adduced upon the trial having a reasonable tendency to support the allegations of the defendant’s special plea, then the rulings relied on in the above-cited cases, holding that it is error to give such charges when they ignore a phase of the defense presented under a plea setting up the negligence or wrong of the plaintiff, would have been applicable. But in the case presented on the record before us, the error, if error it be under the conditions, would be without injury, for the reason that the plaintiff was entitled to the general charge on the defendant’s special plea. Appellant’s counsel in brief candidly admits that, if the plaintiff was entitled to the general affirmative charge on the special plea, then giving the charges in question would be error without injury, but argues that the record contains evidence affording a reasonable inference supporting the allegations of the plea.

We have carefully examined the whole evidence under this suggestion, and do not find it open to a construction authorizing a conclusion that would amount to a reasonable suspicion even that any of the material averments of the plea were sustained by the evidence or the reasonable tendencies thereof, while, on the other hand, the direct and positive testimony, and tendency of the evidence, to refute the facts made the basis of the defense under this plea, is clear and convincing.

[638]*638The rulings assigned as error do not authorize a reversal of the case, and an affirmance must follow.

Affirmed.

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PELHAM, J.

The charges assigned as error cannot operate to work a reversal in this case on the principle as declared in the cases of Frierson v. Frazier, 142 Ala. 232, 37 South. 825, and Alabama Steel & Wire Co. v. Thompson, 166 Ala. 468, 52 South. 75; for while these charges ignore the defense presented by the defendant’s special plea, the evidence shows beyond controversy that this plea failed, as there was no proof adduced upon the trial to support it. If there had been any evidence adduced upon the trial having a reasonable tendency to support the allegations of the defendant’s special plea, then the rulings relied on in the above-cited cases, holding that it is error to give such charges when they ignore a phase of the defense presented under a plea setting up the negligence or wrong of the plaintiff, would have been applicable. But in the case presented on the record before us, the error, if error it be under the conditions, would be without injury, for the reason that the plaintiff was entitled to the general charge on the defendant’s special plea. Appellant’s counsel in brief candidly admits that, if the plaintiff was entitled to the general affirmative charge on the special plea, then giving the charges in question would be error without injury, but argues that the record contains evidence affording a reasonable inference supporting the allegations of the plea.

We have carefully examined the whole evidence under this suggestion, and do not find it open to a construction authorizing a conclusion that would amount to a reasonable suspicion even that any of the material averments of the plea were sustained by the evidence or the reasonable tendencies thereof, while, on the other hand, the direct and positive testimony, and tendency of the evidence, to refute the facts made the basis of the defense under this plea, is clear and convincing.

[638]*638The rulings assigned as error do not authorize a reversal of the case, and an affirmance must follow.

Affirmed.

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Bluebook (online)

60 So. 951, 6 Ala. App. 635, 1913 Ala. App. LEXIS 245, Counsel Stack Legal Research, https://law.counselstack.com/opinion/birmingham-railway-light-power-co-v-walsh-alactapp-1913.

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