115 So. 99 | Ala. | 1928
The only error insisted upon in argument is to the action of the trial court in giving certain charges at the request of the defendant.
We are not persuaded that the charge made the basis of assignment of error 3, and which we number 1, is bad, in that the first part thereof misplaces the legal presumption or burden of proof. It does not attempt to deal with the shifting of the burden or the going forward by the defendant with evidence after the plaintiff has established certain facts as dealt with and discussed in the case of Lawson v. Mobile Elec. Co.,
The trial court could have well refused the charge embodied in the fourth assignment of error, and which we number 2, but we do not think that the giving of same was reversible error.
While the charge made the basis of the fifth assignment of error, and which we number 3, does not possess the vice pointed out as to charge 1, it is involved, confusing, and misleading, and could have well been refused.
We cannot put the trial court in error for giving the charge made the basis of the sixth assignment of error, and which we number 4. It affirmatively instructs the jury that it was not the duty of the defendant to maintain any wires inside the plaintiff's building. True, there was evidence from which the jury could infer that the defendant placed the wires there without compensation, and this might afford a rebuttable inference that it was the defendant's duty to maintain them, but this inference may have been completely rebutted or overcome by other evidence not appearing in the record. The bill of exceptions recites: "There was other evidence in the case not herein set out."
For the error above designated, the judgment of the circuit court is reversed, and the cause is remanded.
Reversed and remanded.
SOMERVILLE, THOMAS, and BROWN, JJ., concur.