Central Railroad & Banking Co. v. Roquemore

96 Ala. 236

• Court: Supreme Court of Alabama
• Decided: November 15, 1892
• Status: Published

Opinion

COLEMAN, J.

This was an action to recover damages for tbe negligent killing plaintiff’s cow. Tbe only error assigned is the refusal of tbe court to give tbe general affirmative charge for tbe defendant. This charge should never be given, except in cases where, if tbe party who requests tbe charge bad demurred to tbe evidence, the court could bave properly sustained tbe demurrer. — Freeman v. Scurlock, 27 Ala. 411; 1 Brick, p. 335. Tbe effect of a demurrer to evidence is an admission by the party demurring of tbe truth of tbe evidence demurred to, and of every inference and conclusion which a jury could legally deduce therefrom. — Code, § 2747; Curtis v. Daughdrill, 71 Ala. 590 ; Armstrong v. Armstrong, 29 Ala. 541; 1 Brick. 888, § 1146. If, instead of asking tlie general charge, tbe defendant bad demurred to plaintiff’s evidence, the court could not bave legally sustained tbe demurrer.

It follows from tbe foregoing well established principles of law, that tbe court did not err in refusing tbe charge as requested.

Affirmed.