
    Birmingham Railway, Light & Power Co. v. Elmit.
    
      Action for Damages to Passenger.
    
    (Decided Jan. 30, 1912.
    57 South. 1015.)
    1. Trial; Instructions; Weight of Evidence. — Where the court, of its ' own motion gives a charge directing the jury to find for the plaintiff, 'if they believe the evidence, the court violates provisions of section 5362, Code 1907, and commits reversible error.
    2. Same; Directing Verdict. — Where there was evidence tending to show that the defendant was not guilty of the wrongs charged, it was error to direct a verdict for plaintiff, as the weight of evidence is for. the jury and not for the court to determine.
    
      Appeal from Jefferson Circuit Court.
    Heard before Hon. E. C. Crow.
    Action by Mrs. Mary E. Elmit against the Birmingham Railway, Light & Power Compay, for damages suffered while a passenger. Judgment for plaintiff and defendant appeals.
    Reversed and remanded.
    Tillman, Bradley & MorrOw, for appellant.
    The court overlooked sec. 5362, Code 1907, and infringed its prohibitive provisions, when he directed a verdict for-the plaintiff. Even if such a charge had been requested, under the evidence in this case it could not have been given, for the evidence not only tended to show that the defendant was not guilty of the wrongs charged, but failed to make out a case. — MoGehee v. Cas km, 130 Ala. 568; B. 2?.., L. & P. Go. v. Haggard, 155 Ala. 346.
    William R. Blevins, for appellee.
    No brief cametO' the Reporter.
   WALKER, P. J.

The court, of its own motion,, charged the jury as follows: “I charge you that if you believe the evidence in this case you must find for the plaintiff.” The defendant duly excepted to this part of the charge, and assigns it as error. That action of the court was in violation of the statute ( Code 1907, § 5362), which provides that the court “shall not charge upon the effect of the testimony, unless required to do so by one of the parties,” and constitutes a ground of reversal.

If the instruction above quoted had been duly requested in writing by the plaintiff, under the evidence on the trial it could not properly have been given, as there was evidence tending to show that the defendant was not guilty of the wrongs charged against it in the complaint. It was for the jury, not the court, to determine the weight to be accorded to that evidence.

Other rulings assigned as errors need not be passed on, as the questions involved may not he presented on another trial.

Reversed and remanded.  