ON MOTION ROE REHEARING.
Bell, J.The plaintiff in error (the defendant in the court below) alleges in its motion for a rehearing that in rendering our decision as above, we overlooked the fact that the “trial court in no part of the charge instructed the jury as to the legal effect of the defendant’s evidence,—that is, the court did not instruct the jury that if the accident occurred during the daytime the plaintiff could not recover,” and otherwise failed to submit the defendant’s contentions as made by the pleadings and the evidence, and as referred to in the motion for rehearing.
The defendant’s motion for a new trial complained only of *339certain portions of the charge as given, and of the refusal of certain requests to charge, and, therefore, invoked no ruling as to any failure or omission to charge.
We do not think that a failure or omission to charge would be material in the mere construction of a request to charge in determining whether it embodied a sound principle of law, applicable to the pleadings and the evidence.
It is claimed in the motion for rehearing that we have made a “tight and close” construction of the requests. The construction which we have placed upon the first request may not be the only construction of which it would be susceptible. If it was reasonably susceptible of that construction (as we think it was) and also of some other, that fact alone would have been a sufficient reason for refusing it, because a request to charge should be clear and unambiguous, and not such as would be calculated to confuse the jury or be misinterpreted by them. We are satisfied that we have not improperly construed either of the requests.
In our original opinion we stated that the public was allowed to travel upon the west side of the street and that this fact was important. This fact did not appear without dispute, but the jury were authorized to infer it from the evidence. The plaintiff testified: The “right-hand side [referring to the west side] was the only side that was open,” and that in the morning of the day that he “was hurt that night,” “the traffic was using that side of the street.”
We would make a similar observation as to the statement of the time of the accident as referred to in the headnote. The result is not changed because these facts were issuable, the jury being authorized to find them to be as claimed by the plaintiff.
Our former ruling is not to be understood as holding that a contractor, in a case of this sort, could not be found to be negligent in placing piles of sand or other like obstructions on one side of a public street while repairing or paving the other side, where the part of the street where such material is located is left open to traffic. Such question is'not up for decision'in the present ease, since the only negligence alleged (so far as material to this discussion) was in the defendant’s failure to have the alleged obstruction lighted.
Motion for rehearing denied.
Stephens, J., concurs. Jenlcins, P. J., disqualified.