Mobile Light & Railway Co. v. Hartwell

50 So. 883, 163 Ala. 77, 1909 Ala. LEXIS 481

Opinion

DOWDELL, C. J.

— The third count of the complaint, added by way of amendment, was not open to the grounds of demurrer interposed, whatever of defect, if any, if might otherwise have possessed.

Issue was joined on the defendant’s ideas of contributory negligence. The evidence without conflict established the pleas, and the court should have given the two written charges requested by the defendant.

The complaint rested upon the initial negligence of the defendant. There was no issue, in the pleading or otherwise, of subsequent negligence after discovery of peril; nor was there any such proof.

For the errors indicated, the judgment is reversed, and the cause remanded.

Reversed and remanded.

Simpson, McClellan, and Mayfield, JJ., concur.