
    20522.
    Southern Railway Co. v. Rylee.
    Decided December 19, 1930.
    Rehearing denied January 14, 1931.
    
      A. J. Griffin, Wheeler & Kenyon, for plaintiff in error.
    
      S. B. Jolly, J. B. G. Logan, contra.
   Bloodworth, J.

1. When the excerpts from the charge of the court of which complaint is made in the special grounds of the motion for a new trial are considered in connection with all the facts of the case and in the light of the remainder of the charge, they contain no error that requires the grant of a new trial.

2. In the brief of counsel for the plaintiff in error they say that in the court below they defended the case on the theory (1) that the plaintiff was “not employed by the railway company at all, but was employed by Litchenstein on his own account, and that the relation of master and servant did not exist between the railway company and Rylee;” and (2) that if the plaintiff suffered any-injury, it “was due solely to his own negligence and to a defect, if at all, known to him and which could not have been known to the company, and which he could have avoided by the exercise of ordinary care for his own preservation and protection.” Both of these contentions raised questions of fact, and as to both the evidence was conflicting, and the jury decided the issues in favor of the plaintiff, and, as there was some evidence to support their finding as to each, this court will not interfere with the judgment overruling the motion for a new trial.

Judgment affirmed.

Broyles, O. J., and Luke, J., concur.  