Bates v. Louisville & N.R. Co.

• Decision Date: 04 August 1925
• Docket Number: 6 Div. 799
• Citation: 106 So. 394,21 Ala.App. 176
• Parties: BATES v. LOUISVILLE & N.R. CO.
• Court: Alabama Court of Appeals

106 So. 394

21 Ala.App. 176

BATES v. LOUISVILLE & N.R. CO.

6 Div. 799

Court of Appeals of Alabama

August 4, 1925

Rehearing Granted Oct. 27, 1925

Rehearing Denied Nov. 17, 1925

Appeal from Circuit Court, Jefferson County; John Denson, Judge.

Action by D.J. Bates against the Louisville & Nashville Railroad Company. From a judgment for defendant, plaintiff appeals. Affirmed on rehearing.

Certiorari denied by Supreme Court in Ex parte Bates, 106 So. 395.

Graham Perdue, of Birmingham, for appellant.

Jones & Thomas, of Montgomery, and McClellan Rice & Stone, of Birmingham, for appellee.

SAMFORD J.

It is insisted on the part of appellee that this court cannot consider the action of the trial court in giving the general charge as to count B, for the reason that a diagram of the locus in quo was drawn on a black board and used on the trial, and that this diagram is not copied in the bill of exceptions. Much of the testimony of the witnesses was based upon this diagram, without which their testimony is meaningless, and for this reason we cannot review rulings of the trial court in giving the general charge as to count B. Ala. Term. R.R. v. Benns, 189 Ala. 590, 66 So 589; Warble v. Sulzberger, 185 Ala. 603, 64 So. 361; S.S. Co. v. Redd, 6 Ala.App. 404, 60 So. 468.

Charge 4, given at the request of defendant, is in effect the same as charge E held to be good in Williams v. Anniston E. &amp G. Co., 164 Ala. 84, 51 So. 385. We are in accord with the later case of Grauer v. A.G.S.R. Co., 209 Ala. 568, 96 So. 915, which holds that such charges "are calculated to confuse the jury, and had better be refused." An accident may be the result of actionable negligence, and indeed, where the element of wantonness is lacking, injuries resulting from simple negligence may usually be classed as such. "Mere" is defined as being "pure," but when used as qualifying "accident," we do not think it conveys to the average mind a term synonymous with "unavoidable accident." But, the giving of charge 4 is held to be free from error in Williams v. Anniston E. & G. Co., supra, which has been reaffirmed in later cases of our Supreme Court, by whose decisions we are bound. We therefore must hold that the giving of charge 4 at the request of defendant did not constitute reversible error. Pace v. L. & N.R.R., 166 Ala. 519, 52 So. 52; Boyette v. Bradley, 211 Ala. 370, 100 So. 647.

As we have seen, this court must assume that...