Western Railway v. Walker , 113 Ala. 267 ( 1896 )

McCLELLAN, J.

Charges 11 and 12 requested by the defendant should have been given. In the first place, each of them hypothesizes facts which are set up in certain pleas interposed by the defendant upon which the plaintiff took issue, and in support of which evidence was adduced, and directs a verdict for the defend-dant in the event the jury should find these alleged facts to exist. Whether the facts in themselves entitled the defendant to a verdict is not material on this state of pleading; granting that the issue thus made was a false one, the plaintiff should be cast in the suit upon it if the defendant sustained its pleas.

But in the next place, we are of the opinion that the issue was a true one; that the facts averred in the pleas and finding support in tendencies of the evidence presented a defense to the action if the jury found them to exist. The facts showed that the defendant, nor its employes had not been guilty of any negligence in the equipment or operation of the train which collided with the car on which plaintiff was a passenger ; and these instructions are-properly limited to the charge of negligence made in respect of that train, and hypothesize a belief on the part of the jury that plaintiff’s injuries were inflicted by that train, and did not result from negligence on the part of those in control of the train on which plaintiff was being carried.

We find no error in the rulings of the trial court on the pleadings, on the admissibility of evidence, or in respect of other charges given or refused.

Bevers'ed and remanded.