119 Ala. 595 | Ala. | 1898
The appellant instituted his action to recover damages for personal injuries sustained, resulting, as alleged, from a defective sidewalk of the city of Mobile. The defect of the sidewalk, as testified to by the plaintiff, consisted of a loose board or plank over a drain or ditch in the sidewalk, and he testified that as he was walking along the sidewalk on or about the 15th of October, 1896, being ignorant of the condition of the sidewalk, he stepped on the plank,"and that it rocked or turned with him and caused him to fall. The testimony of -the wife corroborated him, and she further testified that the edge of the plank was unsound, and that she observed the defect about a Aveek prior to the injury. The plaintiff objected to evidence offered by the defendant
The plaintiff testified that he Avas permanently injured by the fall, and that he suffered in his arm, head and groin. The defendant Avas allOAved to prove that in March afterwards he made application to do police duty in the city, and that he Avas so employed, and that his duties required him to Araik up and doAvn the street, and to preserve order, and such duty Avas performed. We do not regard this evidence as very important, but we are of opinion that it Avas competent to be considered on the question of the extent of the injury sustained.
There is no doubt there was error in the general charge given by the court ex mero motu, but to entitle a party to a reversal for errors in the general charge of the court, as distinguished from charges requested by either party, an exception must be reserved. Section 613 of the Code of 1896 (Acts 1894-5) applies to charges requested in writing and not to the charge given by the court. The record states that the leading counsel for the appellant in the trial court, expressed himself as satisfied Avit'h the general charge of the court, and it is eAldent that he was present at the time a portion of the general charge was repeated to the jury, and that he did not reserve an exception.
In addition to the criticism made by counsel Avho represent appellant on appeal, see the case of Torrey v. Burney, 113 Ala. 496, as to the legal significance of the word “satisfy” when used in an instruction to the jury.
What has been said with reference to the rulings of the court upon the admission of evidence, sufficiently covers the other assignments of error relative to charges numbered four, seven and nine.
The amendment to the complaint offered to be made by the plaintiff, after the jury had agreed upon a verdict and brought it into court, but before it was announced, came too late. It should have been offered before the cause was finally submitted to the jury. — Mahan v. Smitherman, 71 Ala. 563.
The remark of counsel which is assigned as error was immediately withdrawn when made and expressly excluded by the court from consideration by the jury.
We find no error in the record available to appellant.
Affirmed.