Alabama Consolidated Coal & Iron Co. v. Heald

UPON REHEARING.

PER CURIAM.

Upon a reconsideration of this case, this court is of the opinion that so much of the oral charge as was excepted to, and which attempted to define negligence, was erroneous, in that it was too broad and held the defendant to too high a degree of care and responsibility. It pretermitted charging the defendant only with that degree of care as should have been exercised by an ordinarily prudent person under the *657circumstances.—Ala. City R. R. Co. v. Bullard, 157 Ala. 618, 47 South. 578. Nor does it appear that this error was cured by other parts of the oral charge. As the definition given by the court amounted to error as distinguished from mere misleading tendencies, it was not susceptible of correction by giving requested written charges.

We also think that charges 10 and 16, refused to the defendant, should have been given.

The trial court also erred in refusing charge 24, requestéd by the defendant, for the reason set forth in the dissenting opinion of Anderson and McClellan, JJ.

For the errors heretofore mentioned, a rehearing must be awarded, the judgment of affirmance set aside, and the judgment of the circuit court is reversed, and the cause is remanded.

Reversed and remanded.

Dowdell, C. J., not sitting.