Birmingham Railway, Light & Power Co. v. Walsh

PELHAM, J. The charges assigned as error cannot operate to work a reversal in this case on the principle as declared in the cases of Frierson v. Frazier, 142 Ala. 232, 37 South. 825, and Alabama Steel & Wire Co. v. Thompson, 166 Ala. 468, 52 South. 75; for while these charges ignore the defense presented by the defendant’s special plea, the evidence shows beyond controversy that this plea failed, as there was no proof adduced upon the trial to support it. If there had been any evidence adduced upon the trial having a reasonable tendency to support the allegations of the defendant’s special plea, then the rulings relied on in the above-cited cases, holding that it is error to give such charges when they ignore a phase of the defense presented under a plea setting up the negligence or wrong of the plaintiff, would have been applicable. But in the case presented on the record before us, the error, if error it be under the conditions, would be without injury, for the reason that the plaintiff was entitled to the general charge on the defendant’s special plea. Appellant’s counsel in brief candidly admits that, if the plaintiff was entitled to the general affirmative charge on the special plea, then giving the charges in question would be error without injury, but argues that the record contains evidence affording a reasonable inference supporting the allegations of the plea. We have carefully examined the whole evidence under this suggestion, and do not find it open to a construction authorizing a conclusion that would amount to a reasonable suspicion even that any of the material averments of the plea were sustained by the evidence or the reasonable tendencies thereof, while, on the other hand, the direct and positive testimony, and tendency of the evidence, to refute the facts made the basis of the defense under this plea, is clear and convincing. [638] The rulings assigned as error do not authorize a reversal of the case, and an affirmance must follow. Affirmed.