Birmingham Railway L. & P. Co. v. Stanfield

MAYFIELD, J. The pleadings, evidence, and charges of the court in this case bring it indisputably within the rules of law and evidence announced in the case of Birmingham Railway, Light & Power Co. v. Sawyer, 156 Ala. 199, 47 South. 67. and upon that authority the case must- he reversed. The complaint in each count alleged the relation of carrier and passenger, while all the proof conclusively showed the relation of master and servant existed between the parties at the time of the injury. There was no tendency of the evidence to prove the relation as alleged, which was a material averment. The general affirmative charge should have been given for defendant, as was requested in writing. The judgment is reversed, and the cause remanded. Simpson, Denson, and McClellan, JJ., concur.