Seaboard Air Line Ry. Co. v. Pemberton

ANDERSON, C. J. [1] Without determining tbe sufficiency of tbe complaint, it is sufficient to say that tbe record discloses no ruling upon tbe demurrers interposed thereto. [2, 3] Tbe charges embraced in assignments of error 4, 5, and 6 attempted to inject negligence on tbe part of tbe plaintiff, which bad not been pleaded, and are unlike tbe charge held good in tbe case of A. G. S. R. R. Co. v. Bell, 76 South. 920. 1 Moreover, if by tbe use of tbe word “sole” cause it was not intended to invoke tbe doctrine of contributory negligence, but to request a finding for tbe defendant unless its negligence, and not something else, was tbe cause of tbe injury, the defendant got the full benefit of said charges under *56 the oral charge of the court, as the court, in effect, charged the jury. that the defendant’s negligence must have caused th'e injury before it would be liable to the plaintiff. [4] There was no error in refusing the charge made the basis of appellant’s seventh assignment of error. If not otherwise bad, it was at least misleading, as| the jury could infer therefrom that, if the station and. appurtenances were constructed and maintained with ordinary care, they must find for the defendant. True, the word “maintain” is one of broad meaning; hut the average jury might not take it as including the proper lighting of the premises. Moreover, this charge ignores count 1 of the complaint, to which no demurrer was sustained. [5] The charge made the basis of the eighth1 assignment of error ignores count 2 of the complaint, and for reasons hereinafter brought out the defendant was not entitled to the general charge as to said count 2. There was no error in refusing the defendant’s requested charge, dealt with in the ninth assignment of error. It might not be negligence for the defendant to have failed to provide a light on the platform, or steps leading to th'e freight room, if the point was sufficiently lighted from another point or place; but it would doubtless be negligence to fail to provide a light at the place hypothesized, if not sufficiently lighted from another point or place. The charge embraced in assignment of error 10, if not otherwise faulty, seeks to define plaintiff’s - conduct and duty, which was not made an issue in the case. [6] There was no error in refusing the general affirmative charge as to count 2. We cannot, as matter of law, say that th'e steps were not negligently erected, as the trial court and jury had evidence not available to us. They examined photographs of the scene, and counsel has referred to same; but they are not before this court. Dancy v. Ratliff, 201 Ala. 162, 77 South. 688. .There was no error in overruling the motion for a new trial. The judgment of the circuit court is affirmed. Affirmed. McClellan, mayfield, and thomas, JJ., concur. Footnotes [1] 200 Ala. 562.