Louisville & Nashville Railroad v. Sullivan Timber Co.

126 Ala. 95 | Ala. | 1899

TYSON, J.

The appeal in this case is prosecuted by the defendant in the court below from a judgment granting a new trial'. The motion made by the plaintiff for the new trial contains nine grounds. The first two grounds complain of error by the jury in the finding of tlieir verdict. They proceed upon the two propositions: 1st, that the verdict was contrary to the evidence, and; 2d, that it was contrary to the law and evidence*. Under the view we take of the case, it is unnecessary to consider these grounds, further than to say there was evidence* tending to support every issue made by the pleadings in the case, and a conflict in the evidence upon every issue. It would serve no purpose to discuss the weigh! of the evidence, for the reason that the granting of the new trial will not be justified upon either of the two grounds involving the correctness of the verdict of the jury.

Tbe other seven grounds of tbe motion complain of error committed by .the trial court in giving at tbe request of the defendant certain written charges, and in restraining plaintiff’s counsel, in respect to certain matters, in his argument to tbe jury, and in permitting defendant’s counsel in his argument to tbe jury to make certain statements. We take it -that it cannot be a matter of serious doubt, that if either of the charges given by tbe court, at tbe instance of tbe defendant, was error such as would have resulted in a reversal of tbe cause on appeal to this court by tbe plaintiff, that tbe court should have corrected tbe error by granting tbe motion.

The charge set. out in the 7th ground of the motion was certainly bad, if for no other reason than it exacts too high a degree of proof, in requiring tbe verdict. to be based upon evidence, which “satisfies” the minds'of the jury. Evidence is sufficient to justify a verdict if it reasonably satisfies and convinces the mind. Torrey v. Burney, 113 Ala. 496; Moore v. Heineke, 119 Ala. 627; Coghill v. Kennedy, Ib. 641.

The charges set out in tbe fifth and sixth grounds of the motion are subject to tbe same 'criticism, unless tbe words, “if tbe evidence'leaves your mind in uncertainty, .confusion and doubt,” cures this infirmity. It is conceded by appellant’s counsel that the words, “uncertainty and doubt,” if they stood alone, would vitiate the charges, notwithstanding they were faultless in other respects. But it is insisted that because the word, “confusion,” is used in connection with them in the conjunctive and not in the disjunctive, that this relieves tbe charges of all infirmities. We have no doubt that if tbe word “reasonably” had been used to qualify tbe word “satisfy,” where it appears in these ’Charges, that they would not be vicious if good in other respects.—Calhoun v. Hannon, 87 Ala. 277; Marx Bros. v. Leinkauff, 83 Ala. 453; A. G. S. R. R. Co. v. Hill, Ib. 514; Brown v. Master, 104 Ala. 464. In the cases of Calhoun v. Hannon and Marx Bros. v. Leinkauff, supra, tbe words in tbe charge were “confused or uncertain,” which were condemned in A. G. S. R. R. Co. v. Hill and Brown v. Master, and properly so. Had they been connected Iby the conjunction “and” instead of “or,,r they would not have vitiated the charges in those cases. It is manifest from what was said in the Calhoun Casey the judge dealt with the charge as though the words were connected by “and,” overlooking its phraseology in this respect. And so, too, this must have been true in the Marx Case, though it does not appear to be so from the opinion, except inferentially. However, we are of the opinion that the words, “if the evidence leaves your minds in uncertainty, eonf fisión- and doubt,” does not relieve the charges under consideration of the vitiating infirmity pointed out.

No exception appears to have been reserved by the plaintiff to the action of the court in restraining its counsel in argument. But had there been, it would have availed it nothing. The failure of the defendant to produce as a witness the fireman of the engine used by the defendant and alleged to have occasioned the fire, the engineer in charge of -the engine having been examined by defendant as a witness, was not, under all the authorities, a proper subject of comment.—Brock v. The State, 123 Ala. 24; Coppin v. The State; 123 Ala. 58, and authorities cited.

likewise, it does not appear from the record that the plaintiff made any objection whatever to the argument of defendant’s counsel. If it was objectionable, his failure to call the attention of the court to it and to invoke its ruling was a waiver. And the action of the court in granting a motion for a new trial cannot be based upon argument of counsel unless the remarks are grossly improper and highly prejudicial to the opposing party.—Florence C. & I. Co. v. Fields, 104 Ala. 480; Nat. Bank v. Bradley. 108 Ala. 205. The remarks of defendant’s counsel in this case were certainly not of that character.

It is unnecessary to consider the other two grounds of the motion which relate to the giving of two-charges.

The judgment of the court in setting aside the verdict of the jury and granting a new trial must be affirmed.