Wilson Bros. v. Mobile O. R. Co.

The report of this case upon former appeal will be found in207 Ala. 171, 92 So. 246.

The question to the witness Turner as to the number of sparks emitted, and to which an objection was sustained, could have been intended only to show that there was an unusual quantity or that they were of an unusual size, and the witness subsequently testified that the sparks were large and that this train threw out more than other trains; so, if there was error, it was without injury.

There was no error in giving charge 3 at the request of the defendant. It instructed a finding for the defendant only in the event the jury was reasonably satisfied of the proper operation and equipment of the engine and its servants were not guilty of any negligence whatsoever. The last part of the charge was in the conjunctive and was broad enough to cover an improper construction of the engine, if constructed by defendant, or if operated by its servants whether constructed by it or not. Moreover, if the charge was calculated to mislead by the omission of the word "construction" from the first part of same, the misleading tendencies were removed by the oral charge of the court which instructed and repeated that the burden of proof was upon the defendant to show there was no negligence upon the part of its servants in the "operation, construction or equipment of its engines." The charge to which our attention is called in the case of McMillan v. Manistee Lumber Co., 161 Ala. 169, 49 So. 685, is unlike the one under consideration and did not contain the last part of the one at hand.

Charge F, given for the defendant, was merely an instruction as to the burden of proof, and the giving of same was not reversible error. True, it uses the word "preponderance," which might have justified its refusal; but the giving of same was not error to reverse. Green v. Lumber Co., 163 Ala. 516,50 So. 917, and cases there cited; Mayfield's Dig. p. 142. In the case of L. N. R. v. Cheatwood, 14 Ala. App. 175,68 So. 720, cited by counsel, the Court of Appeals simply justified a refusal of charge 18, but did not hold that the giving of same or the one under consideration would be reversible error.

The deed, plat, and assessment were held admissible upon the former appeal. Moreover, the assessment went to the value of the property alone and the measure of damages, as did the defendants' given charge Z, and it is well settled by the decisions of this court that, where the verdict establishes that the plaintiff is not entitled to recover at all errors relating to the measure of damages are not available to reverse the judgment. Pulliam v. Schimpf, 109 Ala. 179, 19 So. 428.

The judgment of the circuit court is affirmed.

Affirmed.

SAYRE, GARDNER, and MILLER, JJ., concur.