152 So. 47 | Ala. | 1934
As a general rule, no duty rests upon the owner or occupant abutting a sidewalk to keep the same in repair, and he is not liable for defects which he did not create. Hill v. Reaves,
The plaintiff's given charge, set out in the fifth assignment of error, was a correct statement of law. It did not instruct a finding, and did not therefore assume that the *32
plaintiff had made out a case of recoverable negligence. If it was misleading, it should have been explained by a requested charge. Moreover, the oral charge of the court placed the burden of proof upon the plaintiff to prove the negligence as charged in the complaint and that it was the proximate cause of the plaintiff's injury. This charge is unlike the one dealt with in the cases of Alabama Steel Wire Co. v. Thompson,
We do not think that the trial court committed reversible error in not requiring the witness to answer the questions set out in the assignments of error 6 and 7. We agree with the trial court that the information sought was substantially covered by the previous testimony of the witness.
There was no proof as to external injuries other than a considerable swelling of the knee; the plaintiff lost only about two months from her work, and, while she may have suffered pain and inconvenience from her knee, and from which she was not entirely free at the time of the trial, she failed to prove that her injuries were so permanent and would be so continuous as to justify the amount of damages awarded by the jury, and the trial court should have granted the defendant's motion for a new trial or required a reduction of same. There being no reversible error, however, in the record other than this, the case will stand affirmed if the plaintiff will, within thirty days, file a remittitur of all damages in excess of $1,200, otherwise the cause will be reversed and remanded. Section 6150 of the Code of 1923.
Affirmed conditionally.
GARDNER, BOULDIN, and FOSTER, JJ., concur.