Robertson V, Bowman

BRIGKEN, Presiding Judge. This cause was tried and determined in the court below on count 1 of the complaint, to which defendant (appellant) pleaded the general issue in short by consent, and contributory negligence. . Appellee sued appellant to recover $150 as damages for negligently killing a mule, property of plaintiff. The jury returned a verdict in favor of plaintiff, and assessed damages at $125. Judgment was accordingly entered, from which this appeal was taken. On the trial there was no dispute that the mule in question was killed in a collision with appellant’s gasoline truck, etc. There is no reason why the evidence should be set out in detail. In some material aspects .the evidence was in conflict, therefore presenting a jury question. The affirmative charge requested by appellant was properly refused. On the material, in fact controlling, question, the alleged negligence of appellant’s agent, the court properly stated the law governing the issue in this case. In this connection the court charged the jury, after defining negligence: “If they were reasonably satisfied that the death of the mule was the direct and proximate consequence of the negligent handling of this track, that the defendant would be liable, but that if this was not the cause, then their verdict should be for the defendant.” Charge A was properly refused. Maddox v. Jones, 205 Ala. 598, 89 So. 38; Smith v. Clemmons, 216 Ala. 52, 112 So. 442. Other charges refused to defendant were either erroneous, misleading, or fairly and substantially covered by the oral charge of the court and by charges given at the request of defendant. The motion for a new trial was properly overruled, and the action of the court, under governing rules, will not be disturbed. Affirmed.