Birmingham Railway & Electric Co. v. Doss , 131 Ala. 177 ( 1901 )

TYSON, J.

There are sixteen assignments of error on the record. Of these, only three are insisted upon in brief of counsel for appellant. Two of these are based upon the refusal to defendant, by the trial court, of charges numbered 5 and 6.

The negligence complained of, was the failure of defendant to provide or maintain in good condition, proper and sufficient outlets or propter • and sufficient ways, means or appliances to prevent the lake from overflowing. The evidence tended to show a failure by defendant to maintain the outlets, etc., etc., in good condition. So, too, it afforded an inference that had the outlets, etc., etc., to prevent the lake from overflowing, been in good condition, the injuries complained of would not have been inflicted, notwithstanding the unprecedented rainfall. The charges were properly refused.

The other assignment relates to the action of the court in overruling the motion for a new trial. The motion •contained five grounds. Only the fifth ground is insisted upon here. It is in these words: “For that the great weight of the evidence supports the contention of defendant, that defendant was not in the possession of the said lake at the time of the alleged overflow, nor was defendant controlling or claiming to control said lake at said time.” It must be conceded that the burden of proof was upon the plaintiff to establish to the reasonable satisfaction of the jury that defendant was in possession of and claiming to control the lake and grounds contiguous thereto on the occasion of the alleged injuries to plaintiff. After a consideration of all the evidence we are unwilling to affirm that the trial court erred in overruling the motion.

A {firmed.