72 So. 433 | Ala. | 1916
Suit for recovery of damages for personal injuries, received by plaintiff while walking along a roadway near a coal tipple of defendant, and caused by a cross-tie falling or being thrown from said tipple and striking plaintiff on the head. This is the second appeal in this case. See Barney Coal Co. v. Hyche, 187 Ala. 520, 65 South. 798. The cause proceeded to trial upon counts 1, 2, A, and B, and resulted in judgment for plaintiff, from which defendant prosecutes this appeal.'
There was but slight variance between the averments in the first and second counts as last amended, and the demurrers thereto are argued as presenting one point. The authorities-cited in support of the ruling on counts 1 and 2 as amended are also applicable to counts A and- B. The complaint was not subject to the demurrers interposed. — Dunn & Lallande v. Gunn, 149 Ala. 583, 592, 42 South. 686; Lewman Co. v. Andrews, 129 Ala. 170, 29 South. 692. , A careful examination of the record discloses that there was sufficient evidence tending to support the material averments of each count of the complaint for submission to the jury, and a lack of any material variance between the averments thereof and the proof. The affirmative charge requested was therefore properly refused.
A few of the assignments of error relate' to rulings on evidence, but the allusion thereto in brief of counsel for appellant can hardly be said to amount to an argument such as calls for a consideration thereof here. We have, however, examined the same, and find them without merit.
We have considered all questions argued by counsel for appellant, and find no reversible error. The judgment of the court below is accordingly affirmed.