Northern Alabama Railway Co. v. Brakefield

McCLELLAN, C. J. This court cannot render a judgment on a ruling of the trial court in respect of the affirmative charge or upon a. motion for a new trial.where the bill of exceptions shows only the mere tendencies of the evidence. There may in such case well have been tendencies of the evidence in a given direction, and at the same time diametrically opposite tendencies. The evidence may have tended to establish the cause of action [606] or the defense, as the case may be, and at the same time have afforded inferences to the contrary so that the affirmative charge could not be given upon it, and such inferences may have found such reasonable support, may have been so naturally deducible from them as to fully justify the jury in finding in line with them and the trial court in overruling a motion for a new trial. That is the case we have here. The evidence relied on by the appellant as showing beyond conflict and adverse inference that the defendant was not guilty is set down in the bill of exceptions as only tending to prove the defense, tending to show certain facts. TIow strongly it ¡30 tended, we are left to conjecture. That it excluded diverse tendencies we cannot say. That it tended so strongly to prove the defense as that it left no room for the jury t<? properly return a verdict for the plaintiff does not appear from the bill of exceptions. The evidence should have been set out in extenso, not mere tendencies. — Rule 33, Code, p. 1201, 89 Ala, IX; Louisville & Nashville Railroad Co. v. Malone, 109 Ala. 509. Affirmed.