Birmingham Railway, Light & Power Co. v. Willis

143 Ala. 220

• Court: Supreme Court of Alabama
• Decided: November 15, 1904
• Status: Published

Opinion

TYSON, J.-

We need only apply what was said with respect to the sufficiency of the first and sixth counts of the complaint in the case of Armstrong v. Montgomery Street Railway Co., 123 Ala. 233, to see that the first count of this complaint as amended was not subject to the demurrer interposed to it.

It is unnecessary to notice assignments of error as to rulings upon the sufficiency of the second count or the pleas interposed to it, since the court charged the jury at th'e request of the defendant that there could be no recovery upon it.

There was no error committed by the court in giving the 4th charge requested by plaintiff or in refusing the 3rd and 4th charges requested by defendant.

Whether the plaintiff, under the evidence, was guilty of contributory negligence in alighting from the moving car, if the jury believe that she did so alight, was a question for the jury and not one of law for the court. — B. R. & E. Co. v. James, 121 Ala. 120 ; Watkins v. B. R. & E. Co;, 120 Ala. 147, and casks there cited.

This disposes of all assignments of error, insisted on predicated upon the ruling of the court upon written charges.

The only ground of the motion for a new trial insisted on is that the verdict was contrary to and against the weight of the evidence.

The evidence was directly in conflict on every material issue of fact. The case was one clearly for the determination of the jury. According the judgment of the trial court the prima facie presumption of correctness and applying the principle that the judgment overruling the motion will, not be reversed unless .plainly erroneous, we are unwilling to affirm that the motion should have been granted.

Affirmed.

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