Central of Georgia Railway Co. v. Simons

43 So. 731, 150 Ala. 400, 1907 Ala. LEXIS 404

Opinion

DENSON, J.

The complaint alleges that the cow was killed on about the 18th day of May, 1905, while the undisputed proof shows that she was killed on the 10th day of October, 1904. There can be no doubt that a fatal variance in the. time as alleged and as proved is shown; and, irrespective of negligence-vel. non on the part of the defendant, the court instead of giving the affirmative charge requested by the plaintiff, should have given it as requested by the defendant.—Wilkinson v. King, 81 Ala. 156, 8 South. 189; Milton v. Haden, 32 Ala. 30, 70 Am. Dec. 523.

If there was error in sustaining the objection-made by the plaintiff to the question propounded to The witness Walker, it was rendered harmless by the witness being-allowed afterwards to give testimony responsive to the question.

The. judgment of the circuit court is reversed, and the cause, remanded.

Reversed and remanded.

Tyson, C. J., and Haralson and Simpson, JJ., concur.