Montgomery Light & Traction Co. v. Riverside Company

Montgomery Light & Traction Co. v. Riverside Company. Damage to Team. (Decided November 7, 1914. 66 South. 459.) Appeal and Error; Revieto; Discretion of Trial Court; New Trial. — Where the charge of the trial court was calculated to mislead, and on that ground the trial judge awax*ded a new trial, his action will not be reviewed on appeal; his action evidencing the fact that in his opinion the charge did mislead the jury. Appeal from Montgomery City Court. Heard before Hon. Gaston Guntek. Action by the Riverside Company against tlie Montgomery Light & Traction Company, for damages to wagon and team. There was judgment for defendant which was set aside on motion of plaintiff, and defendant appeals. Affirmed. Rtjshton, Williams & Crenshaw, for appellant. The giving of the charges was without injury, if error. Rule 45, Sup. Ct. Pr. 29 Cyc., 654; 81 S. W. 566; 73 S. W. 1073. There ivas no error in giving charge 12. Hill, Hill, Wi-iiting & Stern, and R. T. Rives, for appellee. The granting of a new trial was Avithin the discretion of the trial court, and the fact that he did grant it was evidence of his opinion that the charges did mislead, and hence, the neiv trial was properly granted. — So. By. v. Jones, 143 Ala. 325; B. B. L. & P. Go. v. ByoAv, 148 Ala. 69; B. B. L. <£ P. Go. n. Clark, 41 South. 829; Bandall v. B. B. L. & P. Go-., 158 Ala. 532. [MAJORITY — MAYFIELD, J.] MAYFIELD, J. This action ivas by appellee against appellant, to recover damages to a wagon and team of mules, the result of a collision with one of appellant’s street cars. The trial resulted in a verdict for the defendant street car company, which verdict was set aside on appellee’s motion; and from the judgment so setting aside the verdict, and awarding a new trial, appellant appeals. The trial court granted the new trial upon the ground that he had erroneously instructed the jury, at appellant’s request, as to the doctrine of contributory negligence. At best these charges were calculated to mislead the jury, and we will not reverse the court for granting the new trial, if, in his opinion, the charges did so mislead the jury. Affirmed. Anderson, C. J., and McClellan and de Graffenried, JJ., concur.