John v. Birmingham Realty Co.

ANDERSON, J. While the general affirmative charge should never be given whenever there is any evidence or a reasonable inference in opposition to same, yet the inference must he reasonable, and not merely conjectural or imaginary, and unless it is reasonable the giving of said charge is warranted. The only theory upon which the plaintiff could recover in this case is upon proof, positive or circumstantial, that the caps found by him were placed or [605] left there by the defendants, or their agents or servants. There was proof that one of the defendants (Watkins) had snch caps in his commissary, bnt no proof that he was the only person in that section who had or handled snch caps; and the fact that they were found near a tent in which was kept cement, sand, and tools, not shown to have been carried there from the commissary, was not sufficient to create even a reasonable inference that they belonged to or were carried there by Watkins or his servants. True, such caps are used in blasting, and the defendants were engaged in blasting; but the evidence shows that they did not use caps and fuse in doing so. On the other hand, there was proof of constant blasting in a mine or mines near there, by the use of caps and fuse, and that the miners were daily passing in the vicinity of Lilly street. It was also shown that other commissaries in. the neighborhood kept cartridges used in blasting, and it is just as reasonable to infer that the cartridges were dropped by miners, or came out of other commissaries, as it is to infer that they belonged to Watkins, and got to the place where the plaintiff found them through the negligence of said Watkins or his agents or servants. The trial court did not err in giving the general charge requested by the defendants, and the judgment is affirmed. Affirmed. Simpson, Sayre, and Somerville, JJ., concur.