Black-Laird & Co. v. Vandiver & Co.

SIMPSON, J. This was an action by the appellees against the appellants for the value of a mule, belonging324 to the plaintiff, which was killed by falling into a ditch on Lake Street, in the city of Montgomery. There is no dispute as to the joint liability of both defendants, if either is liable. The mule was being driven by a servant of the plaintiff, after 5 o’clock, on the evening of the 24th of December, 1906, when the ground on the edge of said ditch caved in, and the mule went down, with another mule on him. The point mainly argued by the appellants is 'that the court erred in overruling the motion for a new trial. It is unnecessary to repeat the many rulings that have been made by this court as to what will justify this court in reversing a lower court for refusing to grant a new trial. It is sufficient to say that there is a conflict in the evidence on several material facts, such as how dark it was at the time, whether there was a red light at a certain point, and whether the man who was driving the mule was intoxicated; also whether there were certain planks across the ditch, and whether they were knocked down by the wheels of the dray to which the mule was attached. Another question, back of all this, for the jury to consider, was whether, admitting that there was a red light at the corner of Cedar and Lake Streets, and that the planks were in position as claimed, that was such warning as a reasonable regard for the safety of the public would suggest. It was a question for them to consider, also, as to whether, under all the circumstances, the servant of the plaintiff was guilty of contributory negligence in attempting to drive his dray along that street at that time of the evening. The credibility of the testimony is peculiarly for the jury, and we do not think that in this case there is such a state of facts as to justify this court in reversing the judgment of the city court in refusing to grant a new trial. What has been said would also cover the assign [325] ment with regard to the refusal of the court to give the general charge at the request of the defendant; but it may be said, in addition, that the bill of exceptions does not state that it includes substantially all of the testimony. Appellants embrace in one assignment of error the refusal of the court to give charges 9, 11, and 18, requested in writing by the defendants. In order to sustain the assignment, it is necessary that each refusal should be erroneous. — Smith v. State, 130 Ala. 95, 98, 30 South. 432. Referring to charge No. 9, it cannot be said, as a matter of law, that the fact that there was a red, lighted lantern at the intersection of Cedar and Lake streets made it contributory negligence for the plaintiff’s servant to drive into Lake street. While it was sufficient to put him on notice that there was an excavation- or some defect there, and to require him to be on the lookout and use reasonable care to avoid accident, yet as to whether it was negligent to continue to drive on said street would depend upon other facts, such as whether there was sufficient space left on which to drive safely, etc. Hence there was no error in refusing this charge. — Mayor and Aldermen of Birmingham v. Starr, 112 Ala. 98, 107, 108, 20 South. 424; City Council of Montgomery v. Wright, 72 Ala. 412, 421, 422, 47 Am. Rep. 422. The same reasoning applies to charge No. 11. Besides the fact that charge 15 is involved and con-' fusing in other respects, it cannot be determined, with any certainty, to what the expression “his negligence in this particular” refers. The judgment of the court is affirmed. Tyson, C. J., and Anderson and Denson, JJ., concur.