Birmingham Ry. L. & P. Co. v. Hinton
146 Ala. 273
Ala.
1906
Check Treatment
WEAKLEY, C. J.

If the failure of the record to show an order on January 7, 1905, continuing the motion for a new trial until the 14th day of the same month, operated as a discontinuance, yet the motion was heard and decided upon the merits, without objection on the part of the appellant, so far as the bill of exceptions discloses, or without any claim or contention that the *276court Aims Avithen t authority to entertain the motion at the time it was granted. This was a Avaiver of the dis-continance, if any existed. — McCarver v. Doe, ex dem. Herzberg, 135 Ala. 542, 33 South. 486. In Ex parte Highland Ave. & Belt R. R. Co., 105 Ala. 221, 17 South. 182 relied on by appellant, the presiding judge declined to entertain the motion for a neAV trial, and no question of waiver was presented or decided. Upon the merits of the motion, the case is ruled by the decision of this court, upon substantially the same facts, in Birmingham Ry. L. & P. Co. v. Hinton, 141 Ala. 606, 37 South. 635. We are unable to distinguish that case from this. If the plaintiff’s injuries were received from the fire originated by the defendant, the chain of causation between its negligence and the plaintiff’s injuries Avas not, under the circumstances, broken by her removal from the burning house just prior to her return to the building.

The charges given at the instance of the defendant, upon the trial before the jury, Avere not in harmony with the law as declared by this court in Hinton’s Case, supra, Avhich, it must be said, had not been decided at the time of the trial; and the learned circuit judge very properly corrected his error upon being advised, no doubt, of the decision by this court upon the same question, by granting the plaintiff a uoav trial.

It is insisted for appellant that, notAvithstanding the charge given asserted an erroneous legal proposition, yet a new trial should not have been granted; and this insistence rests upon the contention that the affirmative charge should or could have been given because of an entire Avant of eAddence tending to sIioav plaintiff’s injuries Avere attributable to the fire originated by the defendant. This contention cannot be maintained. There was evidence from Avhich the jury might have found that plaintiff’s burns wer,e caused by fire from the burning' building, and in no other way.

Affirmed.

Tyson, Simpson, and Anderson, JJ., concur.