Tennessee Coal, Iron & R. Co. v. Stevens
| Citation | 22 So. 80,115 Ala. 461 |
| Court | Supreme Court of Alabama |
| Decision Date | 19 May 1897 |
| Parties | TENNESSEE COAL, IRON & RAILROAD CO. v. STEVENS. |
Appeal from circuit court, Jefferson county; James J. Banks, Judge.
Action by William S. Stevens against the Tennessee Coal, Iron & Railroad Company for work and labor. From a judgment for plaintiff, defendant appeals. Affirmed.
The defendant pleaded the general issue, payment, and by a third plea set up the fact that by reason of the negligence of the plaintiff while engaged in the service of the defendant an engine which was being operated by the plaintiff collided with another engine being used in the defendant's yard damaging said engine; and the defendant in said plea offered to recoup such damages against the claim of the plaintiff and prayed judgment in its favor. There was evidence introduced by the plaintiff which tended to show that the injury to the engine set forth in defendant's third plea was not imputable to him, while the testimony of all of the witnesses for the defendant tended to show that the injury to the defendant's engine was directly attributable to the plaintiff's engine. Upon the introduction of all the evidence, the defendant requested the court to give the following written charges, and separately excepted to the court's refusal to give each of them as asked: (1) "If the jury believe the evidence, they will find for defendant on its plea of recoupment." (2) "If the jury believe the evidence, they will find that the negligence of the plaintiff proximately contributed to the damage caused by the collision." There were verdict and judgment for plaintiff. The defendant then moved the court to set aside the verdict and judgment, and grant it a new trial, upon the grounds that the verdict was contrary to the evidence and contrary to the law. This motion was overruled, and the defendant duly excepted. The defendant appeals, and assigns as error the refusal of the court to give the charges asked by it, and the overruling of its motion for a new trial.
W Percy and W. I. Grubb, for appellant.
Trotter & McAdory, for appellee.
The instructions to the jury requested by the appellant in form and essence were instructions upon the effect of the evidence,-the instruction known in our practice as the "general affirmative charge." It is the settled rule that the instruction cannot be given where there is any conflict in the evidence as to any material point...
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......Malone, 92 Ala. 630, 9 So. 738; T. C. I. & R. Co. v. Stevens, 115 Ala. 461, 22. So. 80; A. G. S. R. Co. v. Hamilton, 135 Ala. 343,. ......
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