Hall v. Posey , 79 Ala. 84 ( 1885 )

STONE, C. J.

The complaint in this case is equally as full, explicit and direct, as the complaint in the case of M. & O. R. R. Co. v. Thomas, 42 Ala. 672. That complaint was demurred to, and, on very careful consideration, was hold sufficient. Our Code forms are very brief, and in their phraseology, very general. — Code of 1876, §§ 2978-9. The demurrer in this case was properly overruled.—Leach v. Bush, 57 Ala. 145; M. & M. Railway Co. Crenshaw, 65 Ala. 566.

The appellant excepted to the charge of the court which was given at the request of the appellee, plaintiff below. It is here contended, that this charge is faulty, “ in not limiting and confining the belief of the jury to the evidence before them.” "We do not think there was any thing in this objection. The oath administered to the jury required them to render a true verdict according to the evidence; and to suppose they would entertain and act on any belief which was derived from sources other than the testimony, or the influences naturally and reasonably arising out of the facts proved, would be to impute to them a wicked disregard of their sworn duty, or great folly,' which would show their unfitness for the trust confided to them. If counsel apprehended the jury would be misled by the instruction, it was a proper subject for an explanatory charge.—O'Donnell v. Rodiger, 76 Ala. 222.

A second criticism urged against this charge is, that it assumes as fact some filings which rested for their establishment entirely on parol testimony, without referring the sufficiency of the testimony to the jury. We do not concur with counsel in this interpretation of the charge. To submit to the jury the inquiry, whether the saw was out of order, and more dangerous by reason that it had not been sharpened, is equivalent to inquiring of them whether the saw was dull, and whether dullness put it out of order, and rendered it more dangerous. There is nothiug in this objection.

There was no error in refusing the general charge asked by defendant, that “if the jury believe the evidence they must find for the defendant.” That charge is proper only when there is no conflict in the testimony, and all tends to prove certain facts, which, if found, necessarily lead to the result claimed; or, second,"when conceding the existence of every fact which can be found or inferred from the testimony favorable to one of the parties litigant, the other party is entitled to a verdict. This latter phase of the principle arises, when the plaintiff, after introducing all his testimony, fails to make a case which the law deems actionable. It also arises when the plaintiff proves agorima faeie case, or jjresents testimony which, if believed, makes a ptiina faeie case for recovery, and the defense relied on, even if fully believed, is, in law, no defense to the action. It is for the reasons stated above that this form of charge is assimilated to a demurrer to testimony, and that it should never bo given nor asked, when there is any discrepancy, no matter how slight, in the testimony bearing on any matter material to the issue.—1 Brick. Dig. 335, § 3; Davidson v. State, ex rel., 63 Ala. 432; Seals v. Edmondson, 73 Ala. 295. The testimony of. plaintiff, Posey, and of the witness Penny, as to the circumstances under which plaintiff was in control of the saw on the day of the injury, is not sufficiently in harmony, and not sufficiently free from conflict, to justify the giving of the general charge.

Affirmed.