Opinion
6 Div. 887.
January 12, 1928.
Appeal from Circuit Court, Jefferson County; Richard V. Evans, Judge.
Thos. J. Judge, F. D. McArthur, and Edgar Allen, all of Birmingham, for appellant.
If a reasonable construction can be given to facts proven, one favorable and the other unfavorable to defendant, it is not the duty of the jury to give that which is favorable to defendant rather than that which is unfavorable. Key v. State, 4 Ala. App. 76, 58 So. 946; Compton v. State, 110 Ala. 24, 20 So. 119; Gibson v. State, 91 Ala. 64, 9 So. 171; Thomas v. State, 106 Ala. 19, 17 So. 460. An instruction is erroneous which directs the jury to find in favor of that party whose theory is more acceptable and more consistent with their experience. 38 Cyc. 1780. The inferences to be deduced from facts in evidence are for the jury. 38 Cyc. 1517. Where the facts admit of different constructions or inferences, or where different conclusions might be drawn, although the evidence is uncontradicted, the case is for the jury. 38 Cyc. 1536, 1539, 1540.
Horace C. Wilkinson and J. C. Burton, both of Birmingham, for appellee.
In the absence of evidence of actual negligence, evidence of due care by the defendant will make the case one for the court. Lawson v. Mobile Elec. Co., 204 Ala. 318, 85 So. 257; Liverett v. N.C. St. L. R. Co., 186 Ala. 111, 65 So. 54; Mobile Light R. Co. v. Roberts, 192 Ala. 486, 68 So. 815; L. N. R. Co. v. Moran, 200 Ala. 241, 76 So. 7; C. of G. R. Co. v. Robertson, 203 Ala. 358, 83 So. 102; Fairfax v. King, 21 Ala. App. 306, 107 So. 722. The burden is on the party alleging negligence to prove same. Lawson v. Mobile Elec. Co., supra; L. N. R. Co. v. Glick, 214 Ala. 303, 107 So. 453.
The only error insisted upon in argument is to the action of the trial court in giving certain charges at the request of the defendant.
We are not persuaded that the charge made the basis of assignment of error 3, and which we number 1, is bad, in that the first part thereof misplaces the legal presumption or burden of proof. It does not attempt to deal with the shifting of the burden or the going forward by the defendant with evidence after the plaintiff has established certain facts as dealt with and discussed in the case of Lawson v. Mobile Elec. Co., 204 Ala. 318, 85 So. 257, but we think the latter part of same was bad. It was not only misleading, but invaded the province of the jury, and was therefore erroneous. Smith v. State, 88 Ala. 23, 7 So. 103; Gibson v. State, 91 Ala. 64, 9 So. 171; Skipper v. Reeves, 93 Ala. 332, 8 So. 804. The charge, in effect, instructs the jury that they should not find the defendant guilty of negligence, if they could reasonably reconcile all the evidence in the case with the theory that the defendant was not guilty of negligence, although they could have more reasonably found from all the evidence that the defendant was guilty of negligence. True, in the first two cases cited, similar charges were criticized merely, and the trial court was justified in refusing same, but, in the last case, Skipper v. Reeves, supra, it was held that the giving of such charges was reversible error.
The trial court could have well refused the charge embodied in the fourth assignment of error, and which we number 2, but we do not think that the giving of same was reversible error.
While the charge made the basis of the fifth assignment of error, and which we number 3, does not possess the vice pointed out as to charge 1, it is involved, confusing, and misleading, and could have well been refused.
We cannot put the trial court in error for giving the charge made the basis of the sixth assignment of error, and which we number 4. It affirmatively instructs the jury that it was not the duty of the defendant to maintain any wires inside the plaintiff's building. True, there was evidence from which the jury could infer that the defendant placed the wires there without compensation, and this might afford a rebuttable inference that it was the defendant's duty to maintain them, but this inference may have been completely rebutted or overcome by other evidence not appearing in the record. The bill of exceptions recites: "There was other evidence in the case not herein set out."
For the error above designated, the judgment of the circuit court is reversed, and the cause is remanded.
Reversed and remanded.
SOMERVILLE, THOMAS, and BROWN, JJ., concur.