City of Anniston v. Dodd

108 So. 634, 21 Ala. App. 400, 1926 Ala. App. LEXIS 165

Opinion

RICE, J.

This was a suit by' appellee against appellant and one Parker (street su-, perintendent of appellant city), claiming damages on account of injuries suffered as the proximate result of the negligence of the -appellant in allowing or permitting a defect in one of its streets. From the judgment in his favor against the city, this appeal is prosecuted.

A discussion of the evidence would'not be helpful.

Upon a reasonable construction of the bill of exceptions, it sufficiently appears that appellant duly reserved an exception to the following portion of the trial court’s oral charge to the jury:

“ * * * That a party who makes a repair or a corporation who makes a repair after injury, that may be taken into consideration by you as a circumstance of an admission that there was a defect in the street before the injury, on the theory that a party just after an injury makes a repair or corrects a matter, that that may be taken into consideration by you, together with all the testimony in the case, as an admission.” Wade v. State, 14 Ala. App. 130, 72 So. 269 (opinion on rehearing).

The part of the oral charge quoted stated an incorrect proposition of law, and its giving, was prejudicial error — not cured by the other parts of the said oral charge, or by any written charges given to the jury. Collins v. Mobile & Ohio R. R. Co., 210 Ala. 234, 97 So. 631 (on rehearing), and authorities therein cited.

Charges 1 and 3 requested in writing by appellee were each properly given to tlje jury. City of Montgomery v. Ferguson, 207 Ala. 430, 93 So. 4.

There was no error in giving the general affirmative charge in favor of the defendant Parker, City of Montgomery v. Ferguson, supra: . '

For the error pointed out, let the judgment be reversed and the cause remanded.

Reversed and remanded.