Louisville & N.R. Co. v. Sides

• Decision Date: 13 February 1901
• Citation: 29 So. 798,129 Ala. 399
• Parties: LOUISVILLE & N. R. CO. ET AL. v. SIDES.
• Court: Alabama Supreme Court

29 So. 798

129 Ala. 399

LOUISVILLE & N. R. CO. ET AL. v. SIDES.

Supreme Court of Alabama

February 13, 1901

Appeal from city court of Anniston; J. W. Lapsley, Judge.

Action by Jemima Sides, administratrix, against the Louisville &amp Nashville Railroad Company and others. Judgment for defendants. From an order setting aside such judgment, and granting a new trial, defendants appeal. Reversed.

On the trial of the cause there was a verdict and judgment for the defendants. The plaintiff moved the court to set aside said verdict, and grant it a new trial. The grounds of this motion and the facts of the case are sufficiently stated in the opinion. Upon the hearing of all the evidence, the court granted the motion to set aside said judgment and granted a new trial, the judgment entry reciting that it was "because the court erred in giving the charges requested by the defendants."

Thos G. Jones, for appellants.

Caldwell & Johnston and Matthews & Whiteside, for appellee.

DOWDELL J.

On issue joined between the parties at trial by jury was had and a verdict rendered for the defendant. On motion of the plaintiff, the verdict was set aside and a new trial granted. From the judgment of the city court granting the new trial this appeal is prosecuted. The grounds of the motion for the new trial were: "(1) The verdict is contrary to the evidence. (2) The court erred in giving the several written charges requested by the defendant. (3) Because the jury in their deliberations had and read the brief of law and points prepared by defendant's counsel for the trial of this cause, which gave their contentions of the law bearing upon this case."

The judgment of the trial court in granting the motion for the new trial, as shown by the recital in the judgment entry, was rested on the second ground of the motion, viz. that the court had erred in giving the written charges requested by the defendant. The evidence showed that the well into which plaintiff's intestate fell, and which resulted in his death, was located in an old field, which up to about 10 or 12 years before the accident had been inclosed and in cultivation; that the old field was the private premises of the defendant, and was traversed by a number of footpaths one of which passed near the well into which deceased fell, and had been commonly used by people in that vicinity for 20 years or more as a "short cut" in going to and from the city of Anniston and the pipe works to their homes; that the defendant in the year 1894, about two years previous to the accident, posted these premises against trespassers; and that those who owned and preceded the defendant in possession of the premises, and...