Jaffe v. Birmingham Railway, L. & P. Co.

52 So. 311 | Ala. | 1910

SAYRE, J.

The law of this case Avas fully and accurately stated to the jury by the learned trial judge. The appellant makes a sweeping complaint of the Avritten instructions given to the jury on the request of the defendant, because, he says, they pretermit consideration of the counts for Avillful wrong, and cites Birmingham Ry., L. & Power Co., v. Williams, 158 Ala. 381, 48 South. 93. The charges which were condemned in that case for pretermitting inquiry as to Avantonness, one expressly, and the other in effect, made the result'of the case to turn upon questions of simple and contributory negligence; Whereas the pleading and evidence raised an issue as to the wantonness of the defendant’s servant in the infliction of plaintiff’s injury, without consideration of which the case could not have been properly decided. Here, to the contrary, the charges complained of carefully avoided that fault. They dealt with only one phase of the case; hut it was defendant’s right to have the law so stated to the jury, if that phase was fairly presented and the entire case was not made to depend upon it. There ivas no error in the action of the trial court, and its judgment Avill be affirmed.

Affirmed.

Doavdell, O. J., and Anderson and Evans, JJ., concur.