191 So. 214 | Ala. | 1939
The complaint was not subject to the defendant's demurrer which was properly overruled by the trial court. Mayor and Aldermen of Birmingham v. Starr,
In our case of Mayor and Aldermen of Birmingham v. Lewis,
The evidence sought to be elicited from the witnesses by counsel for defendant did not go far enough in stating a proposed compliance with the rule as to the defendant's inability to have remedied the defect, and the ruling of the trial court was free from error. In other words, the attempt or offer was to show the then inability of the defendant to make repairs and not at the time the defect arose or during all the time between the creation of same and the time of plaintiff's injury. The complaint and proof proceed upon the theory that the defect arose out of the construction and was maintained up to the time of the injury and, from aught appearing, the defendant may have been able to have remedied or removed the same before plaintiff was injured.
There was objection to a part of the closing argument of appellee's counsel and the objection was sustained, and the defendant got the benefit of all that was asked by its counsel.
There was no error in giving plaintiff's charge 2. It asserts the law. City of Birmingham v. Gordon,
Defendant's refused charges, which we number 1 and 2, were refused without error. They attempt to invoke contributory negligence and there was no proof of such negligence on the part of the plaintiff or reasonable inference of same. Birmingham Railway, Light Power Co. v. Oden,
The trial court refused the motion for a new trial without error.
The judgment of the circuit court is affirmed.
Affirmed.
GARDNER, BOULDIN, and FOSTER, JJ., concur.