Southern Ry. Co. v. Popejoy

107 So. 809, 214 Ala. 272, 1926 Ala. LEXIS 221

Opinion

ANDERSON, C. J.

As we understand the complaint in this case, it proceeds, not from the • erection or construction of a defective or imperfect stock gap, but for the negligent maintenance of same so as to invite stock to go upon said gap by permitting grass to grow under or over same so as to obscure or conceal the spikes or signals of warning, and, if this he true, the defendant would be guilty of negligence and liable for injuries to stock by going upon or over said gap. Carrollton R. R. v. Lipsey, 43 So. 836, 150 Ala. 570. It was a question for the jury as to whether or not there was a sufficient growth of grass at this point to conceal the danger and in effect invite stock to go upon said gap; therefore the general charge was properly refused the defendant. Nor. are we persuaded that the verdict was so contrary to the great weight of evidence as to piit. the trial court in error for overruling the motion for á new trial.

The cases of Davis v. Lawler, 96 So. 256, 209 Ala. 314, Ex Parte Hines, 87 So. 691, 205 Ala. 17, and Northern Alabama R. R. v. Foster, 76 So. 979, 200 Ala. 621, cited by counsel for appellant, arc in no sense opposed to the present holding.

The judgment of the circuit court is affirmed.

Affirmed.

SAYRE, GARDNER, and MILDER, JJ., concur.