Wright v. Empire Coal Co.

Wright v. Empire Coal Co. Injury Action. (Decided April 12, 1917. 74 South. 939.) New Trial; Grounds; Verdict Contrary to Instructions. — Where the court at defendant’s request and w’ith plaintiff’s express consent gave charges which under the undisputed evidence were in effect the affirmative charge for defendant, an order of the court setting aside a verdict for the plaintiff will not be reversed on appeal, since such verdict was contrary to the instructions of the court. Appeal from Walker Circuit Court. Heard before Hon. J. J. CURTIS. Ed Wright sued the Empire Coal Company and had judgment, which was set aside on motion of the defendant, and a new trial granted, from which latter order plaintiff appeals. Affirmed. Leith & Gunn for appellant. A. F. Fite for appellant. [MAJORITY — MAYFIELD, J.] MAYFIELD, J. The only question presented on this appeal, is whether or not the trial court erred in setting aside a verdict in favor of plaintiff (appellant here) and awarding a new trial. The record has been carefully examined, and we are not prepared to say that the trial court erred in awarding a new trial. While the trial court did not in terms give the affirmative charge for the defendant on every issue submitted to the jury, it did in effect so charge the jury; and many of the charges, which, under the undisputed evidence, were in effect the affirmative charge for the defendant, were given, not at plaintiff’s request, but at defendant’s request, and with the express consent of plaintiff that they be given. So there is no doubt that the verdict of the jury was therefore contrary to the instructions of the court; and for this reason, if for no other, we would not reverse the order and judgment of the trial court awarding a new trial. We do not, however, mean' to intimate that there were not other reasons justifying the action of the trial court. Affirmed. Anderson, C. J., and Somerville and Thomas, JJ., concur.