Louisville & Nashville Railroad v. Sides

129 Ala. 399 | Ala. | 1900

DOWDELL, J.

On issue joined between the parties a trial by jury was had and a verdict rendered for the defendants. On motion of the plaintiff the verdict was set aside and a new trial granted. ■ From the judgment of the city court granting the new trial this appeal is pro-secuted. The grounds of the motion for the new trial were:

“1. The verdict is contrary to the evidence.

“2. The court erred in giving the several written charges requested by the defendants.

“3. Because the jury in their deliberations had and read the brief of law and points prepared by defendant’s counsel for the trial of this cause which gave their contentions of the law bearing upon this case.”

The judgment of the trial court in granting the motion for the new trial, as shown by the recital in the judgment entry, was rested on the second ground of the motion, viz., that the court had erred in giving the written charges requested by the defendant. The evidence showed that the well into which plaintiff’s intestate fell, and which resulted in his death, was located in an old held which up to about ten or twelve years before the accident, had been enclosed and in cultivation; that the old field was the private premises of the defendant and was traversed by a number of footpaths, one of which passed near the Avell into which deceased fell, and had been commonly used by people in that vicinity for twenty years or more as a “short cut” in go-, ing to and from the city of Anniston and the Pipe Works to their homes; that the defendants in the year 1894, about two years previous to the accident, posted these premises against trespassers, and that those who owned and preceded the defendant in possession of the premises, and through whom the defendant derived its title to the property, had at different times within’ the twenty years that these paths had been so used, stopped and prevented certain persons from travelling them, and permitted or suffered others to use them, thus denying the right of the 'general public to the use of said paths. On this state of the evidence, which was undisputed, no presumption of dedication to the public could arise. There was no evidence that the deceased was there by invitation of the defendant, nor was there any evidence that the deceased had or claimed for himself any ' easement in said paths.' On thesfe facts, if not a trespasser, he was there by bare suftTance. These facts are undisputed, and upon them the court should have given the general affirmative charge requested by the defendant. It is a principle of law founded' on reason as well as authorities, that where a land-owner suffers persons to cross his lands without any express or implied invitation on his part, and such person wanders out of the beaten paths and falls into a pit, the landowner is- without fault or blame, and cannot be made liable in damages.—Omaha R. R. Co. v. Martin, 14 Neb. 295; Sweeny v. Old Colony R. R. Co., 10 Allen 868; E. & T. R. R. Co. v. Griffin, 100 Ind. 221.

As to the third ground of the motion, it was shown by the affidavit of the clerk that the brief of defendant's counsel was accidentally placed in the file of papers which Avas given to the jury upon their retirement to consider of their verdict.' It Avas also shoAvn by the affidavits of all the jurors that this brief of counsel was not considered or examined by the jury; that it did not have any influence or effect upon their verdict ; that the cause was decided by the jury solely upon the facts offered in evidence and the charge of the court. There Avas no evidence imputing any improper motive .to the defendant or to any one connected with the case in the brief’s getting into the file of papers which Avere carried out by the jury. Under these facts the case is brought Avithin the doctrine of Clay v. City Council. 102 Ala. 299.

As in the opinion of this court on the undisputed facts, the general charge requested by the defendant should have been given, it is immaterial and unimportant Avhether the tAvo Avritten charges given at the request of defendant upon a particular phase of the evidence, were erroneous or not, for if error, it was manifestly error without injury.

For the reasons stated above, the judgment of the court in granting a neAV trial must 'be reversed and a judgment Avill be here rendered denying the motion.

Reversed and rendered.