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[10] 9. Still another bill shows that the sideration upon the question of delivery by the judge charged the jury: grantor.

"That flight was an evidence of guilt; that it was to be so considered by the jury, but they could also consider the prisoner's explanation of it; that counsel objected on the ground 'that the law does not consider mere flight as an evidence of guilt which would authorize conviction, unless explained by the accused; that said charge worked an injury by eliminating all other evidence than that of the accused as to where he was when arrested, and how he came to be in Texas when arrested'; and that the objection was overruled, for the reason signed by the court, as follows:

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When the objection was made by counsel, I immediately changed the charge to the jury, and instructed them that flight was to be considered as a consciousness of guilt, and to disregard what I had already charged them on the subject.'

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"Under the humaner spirit of modern law [this court has said], the weight attributed by the old common law to flight from justice, as a presumption of conscious guilt, has now greatly diminished. It is now merely regarded as a circumstance which, though by no means strong enough, by itself, to warrant a conviction, yet may become one of a series of circumstances from which guilt may be inferred.' Wharton's Cr. Ev. § 750." State v. Moncla, 39 La. Ann. 871, 2 South. 816. See, also, State v. Baptiste, 105 La. 663, 30 South. 147.

The charge complained of, even in its corrected form, was therefore objectionable, though, as the defendant was afforded opportunity to explain, it is not likely to have operated to his prejudice. Because of the other errors which have been noted, however, and which could not have failed to prejudice his case, the verdict and sentence should be set aside.

[Ed. Note. For other cases, see Deeds, Dec. Dig. § 200.*]

5. TRIAL (§ 260*)-INSTRUCTIONS-REQUESTS -CHARGES ALREADY GIVEN.

Requested charges, which were substantially covered by other charges given, were properly refused.

INSTRUCTIONS

Dig. §§ 651-659; Dec. Dig. § 260.*] [Ed. Note.-For other cases, see Trial, Cent. 6. TRIAL (§ 244*) - UNDUE PROMINENCE TO PARTICULAR MATTERS. In ejectment, in which the question of the delivery of a deed was in issue, requested charges that the fact that a certain person signed the deed as a witness cannot be considered as evidence that the grantor intended that the deed should be delivered during her lifetime, or that such deliveries were in fact made, were

properly refused as giving undue prominence to parts of the evidence.

[Ed. Note.-For other cases, see Trial, Cent. Dig. 88 577-581; Dec. Dig. § 244.*] 7. APPEAL AND ERROR (§ 1064*)-HARMLESS ERROR-INSTRUCTIONS-CHARGES ON FACTS.

der the will of the original owner, and defendIn ejectment, in which plaintiff claimed un

ant claimed under a deed from such owner to W., the court instructed that, if W. had possession of the will after the death of the original owner and kept it and did not destroy it after getting the deed, that would be a circumstance which the jury could consider in determining whether she obtained the deed by fraud. Held, that the instruction might have been refused for singling out particular parts of the evidence and charging thereon and as tending to mislead the jury, but that the error in giving it was not reversible.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4219-4224; Dec. Dig. § 1064.*]

DENCE.

It is therefore ordered, adjudged, and decreed that the verdict and sentence ap-8. DEEDS (§ 203*)-VALIDITY-FRAUD-EVIpealed from be set aside and annulled, and this case remanded to the district court, to be there proceeded with according to law.

(174 Ala. 107)

RICKERT v. TOUART. (Supreme Court of Alabama. Nov. 16, 1911.) 1. TRIAL (§ 139*)-DIRECTION OF VERDICT.

If the evidence made certain material matters questions for the jury, it would be improper to give the general affirmative charge.

[Ed. Note. For other cases, see Trial, Cent. Dig. §§ 332-341; Dec. Dig. § 139.*] 2. DEEDS (§ 56*)-DELIVERY.

The delivery of a deed may be either actual or constructive.

[Ed. Note. For other cases, see Deeds, Cent. Dig. §§ 117-125; Dec. Dig. § 56.*] 3. DEEDS (§ 66*)—DELIVERY-JURY QUESTION

-INTENTION OF GRANTOR.

The grantor's intention as to the delivery of a deed, if material, is as a rule a question for the jury.

[Ed. Note.-For other cases, see Deeds, Cent. Dig. §§ 127, 633; Dec. Dig. § 66.*]

That a grantee had possession of grantor's will after her death and did not destroy it after obtaining a deed conveying to her land devised by the will would be a circumstance for consideration in determining whether the deed was obtained by fraud.

[Ed. Note. For other cases, see Deeds, Cent. Dig. §§ 602-611; Dec. Dig. § 203.*]

Appeal from Circuit Court, Mobile County; Samuel B. Browne, Judge.

Ejectment by Anna Rickert against Kate Touart. From a judgment for defendant, plaintiff appeals. Affirmed.

Plaintiff claimed title under the will of Mary Rodrigues made in 1879 and admitted to probate in 1907, seven years after her death on August 25, 1900, while defendant claimed under two conveyances, each executed Au gust 23, 1900, one of which was made to Margaret Wall.

The assignment of errors challenges the correctness of the trial court's rulings as to such charges. The affirmative charge and charges 3 and 5 were duplicated in other charges given. Charge 2 refused defendant 4. DEEDS ( 200*)-DELIVERY-EVIDEnce. The fact that a deed was duly acknowl- was as follows: "The court charges the jury edged and recorded was a circumstance for con- that the fact, if it is a fact, that Dr. Thomas

signed the deed in question, from Mary Rodrigues, as a witness, cannot be considered by the jury as evidence that Mary Rodrigues intended that the deed should be delivered during her lifetime, or that such deliveries were in fact made." (4) "The court further charges the jury that while they can look to the fact that Dr. Thomas signed the deed from Mary Rodrigues which are in question, as a witness for the purpose of determining whether Mary Rodrigues in fact signed the deed, they cannot consider the fact as evidence tending to show that the deed should be delivered during her lifetime or that they were in fact so delivered." The following charge was given at the request of defendant: "If Margaret Wall had possession of the will after the death of Mary Rodrigues, and kept the same and did not destroy it, after getting the deed from Mary Rodrigues, this would be a circumstance which the jury might consider in determining whether or not she obtained the deed by fraud."

Gregory L. & H. T. Smith and William G. Caffey, for appellant. L. H. & E. W. Faith

and Tisdale J. Touart, for appellee.

DOWDELL, C. J. This the second appeal in this case; the first to be found reported in 163 Ala. 362, 50 South. 896.

The rights of the plaintiff and the defendant respectively hinge upon the validity vel non of the deed offered in evidence by the defendant from Mary Rodrigues, the common source of title, to Margaret Wall. This was attacked by the plaintiff on the trial for fraud in its execution. On this question, the evidence in the last trial is not materially different from what it was on the former trial.

We are not disposed to depart from what was said and ruled on the former appeal. The case of Thompson v. New England Mortgage & Security Co., 110 Ala. 408, 18 South. 315, 55 Am. St. Rep. 29, cited in brief and argument of counsel for appellant, is not in our opinion, as contended by counsel, in conflict with our ruling on former appeal in this case. In the cited case, the court undertook only to decide what statements contained in the officer's certificate of acknowledgment were conclusive and what were not conclusive, in the absence of duress or fraud. It was not intended to decide, where there is an issue of fraud involved in the execution of the instrument, that unessential statements in the certificate are not admissible, and not to be considered as any other attendant circumstance. As stated on the former appeal: "Under the rule laid down in the recent case of Russell v. Holman, 156 Ala., 432 [47 South. 205], the certificate of the notary public, attached to the deeds, 'was en

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titled to be considered by the jury as evidence of the facts recited therein.'"

[1] The inferences afforded by the statements made in the certificate were matters for the jury, and in such cases the giving of the general affirmative charge would be improper.

[2, 3] Delivery of a deed may be actual or it may be constructive, and, wherever the intention of the grantor as to delivery becomes an essential question, it is one of fact that properly belongs to the determination of the jury. Under all of the evidence in the present case the question of the delivery of the assailed instrument was one for the jury, and could not be determined as a matter of law, on the general charge.

In Fitzpatrick v. Brigman, 130 Ala. 456, 30 South. 502, it was said: "If it (the deed) is duly acknowledged and recorded (and such was true in the case before us), the presumption of delivery attaches, which can be repelled only by evidence of actual dissent of the grantee."

[4] That the deed in the present case was duly acknowledged and recorded was certainly a circumstance in evidence to be considered by the jury upon the question of delivery, and a charge withdrawing this from the jury would be improper. The trial court committed no error in refusing the general charge requested by the plaintiff.

There were several other written charges refused to the plaintiff.

[5] As to charges 3 and 5, it is sufficient to say, apart from any other consideration, that every proposition of law asserted in these charges was given to the jury in other charges given by the court at plaintiff's request. In other words, they find substantial duplication in other charges given.

[6] Charges 2 and 4, refused, were faulty in singling out and giving undue prominence to particular parts of the evidence, if not otherwise bad.

[7, 8] While the charge given at the request of the defendant might have been refused for singling out particular parts of the evidence, yet this does not constitute the giving of it reversible error; neither does the fact that the charge was of misleading tendency constitute its giving reversible error. Otherwise the charge was free from objection. The question of fraud was an issue in the case, and the principle of law asserted in the given charge was correct.

Under the rule laid down in Cobb v. Malone, 92 Ala. 630, 9 South. 738, and so often adverted to and followed in subsequent cases by this court, we are not prepared to say that the trial court committed error in denying the motion for a new trial.

We find no reversible error in the record, and the judgment is affirmed.

Affirmed. All the Justices concur,

(174 Ala. 589)

(Supreme Court of Alabama.

то

CIENCY.

In an action by an injured servant, evidence held insufficient to show negligence on

the part of the master.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. 88 954-972; Dec. Dig. 278.*]

2. MASTER AND SERVANT (§ 155*)-INJURIES TO SERVANT-DUTY TO INSTRUCT SERVANT. Where the work of painting a roof was not attended with any dangers which were not open to a man of ordinary intelligence, the failure of the master to instruct and warn a servant of such dangers was not negligence.

the work, one for each man, and both simROBERTSON ▼. TENNESSEE COAL, IRON ilarly constructed for hooking over the comb & R. CO. of the roof, to prevent sliding off, though Nov. 23, 1911.) one ladder was heavier than the other. The 1. MASTER AND SERVANT (§ 278*)-INJURIES plaintiff went to work on Friday morning SERVANT-ACTIONS-EVIDENCE-SUFFI- painting the roof, and for his work selected the heavy-weight ladder, which he used, all day Friday and up to about 9 o'clock on Saturday, with safety; Sam Rolen, the other employé, using the light-weight ladder. Saturday morning about 9 o'clock the plaintiff abandoned his ladder, throwing it off on the other side of the roof, because, he says, "the heavy-weight ladder on which he was at work began to show some tendency to jump up at the upper (or comb) end thereof." The plaintiff, after discarding the ladder that [Ed. Note. For other cases, see Master and had been furnished him and which had servServant, Cent. Dig. § 310; Dec. Dig. 155.*] ed its purpose with safety to him, got upon 3. MASTER AND SERVANT (§ 278*)-INJURIES the other ladder with Sam Rolen. This he SERVANT-ACTIONS-EVIDENCE-NEGLI- did of his own volition and accord, and without any order or direction by the superintendent of the defendant, or, as for that matter, of any one. Shortly after getting upon the ladder with Rolen, the ladder slid off of the roof of the shed, carrying the plaintiff and Rolen to the ground with it, a distance of 12 feet, when the plaintiff received the injuries complained of. fall the lateral bars of the ladder were broken. The foregoing statement of facts was in substance the plaintiff's own evidence, testifying as a witness in his own behalf, and was without dispute or conflict.

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GENCE.

A servant, who was painting a roof, left the ladder upon which he was working, and attempted to work upon a ladder which was then in use by another servant. Each servant had been furnished a ladder for his own use. The ladder came off of the roof with the two men on it, and was broken by the fall. Held, that the breaking of the ladder by the fall was not evidence of negligence, being used in a manner not intended.

[Ed. Note. For other cases, see Master and Servant, Cent. Dig. 88 954-972; Dec. Dig. 8 278.*]

4. APPEAL AND ERROR (8 1040*)-REVIEWHARMLESS ERROR.

Any error in sustaining a demurrer to several counts in a complaint was harmless, where the facts proven conclusively showed that plaintiff was entitled to no recovery.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. 88 4089-4105; Dec. Dig. 1040.*1

In the

Evidently the sliding of the ladder from the roof was the result of its becoming detached from the comb, where the crosspiece, or "miter joint," at the upper end of the ladder hooked over the comb, and that this was occasioned by the plaintiff's getting upon it and putting it to a double service, and which was not intended or directed by the superintendent. The two ladders furAction by William T. Robertson, Jr., nished by the defendant, as long as used as against the Tennessee Coal, Iron & Rail-intended and directed by the superintendent, road Company. From a judgment for defendant, plaintiff appeals. Affirmed.

Appeal from Tuscaloosa County Court; Henry B. Foster, Judge.

Brown & Ward, for appellant. Oliver, Verner & Rice, for appellee.

DOWDELL, C. J. [1] The plaintiff was injured by falling from the roof of a shed over a boiler, where he was at the time engaged in painting the roof. To do this work a ladder was used, which laid flat upon the roof, "and was held onto said roof by a crosspiece so nailed to the upper end thereof as to form a miter joint or angle therewith, which so fit over the comb of the roof of said shed as to hold said ladder thereon; said crosspiece extending the entire width of the upper end of said ladder." One Sam Rolen, another employé of the defendant, was engaged with the plaintiff in doing the painting of said roof. There were two ladders furnished by the defendant for doing

proved to be safe for their purposes. On the

undisputed evidence we fail to see wherein the defendant or its superintendent was guilty of any negligence.

[2] The plaintiff was a man, and presumably one of ordinary intelligence. The work of painting the roof in the manner in which it was directed to be done by the superintendent of the defendant was not attended with any dangers which were not open to a man of ordinary intelligence, and the failure of the superintendant to instruct and warn the plaintiff, therefore, would not constitute negligence.

[3] There was no evidence of any defect in the ladder that proximately caused the plaintiff's injury. The mere fact alone that the ladder was broken by the fall from the roof to the ground with two men on it does not prove that it was defective or insufficient for the purpose for which it was intended.

Moreover, the plaintiff, by his own voluntary | railroad right of way, with the beginning point act in getting on the light-weight ladder already occupied by Rolen, was the immediate cause of the accident that resulted in his injury.

The defendant, on the undisputed evidence, was entitled to the general charge requested, and the trial court committed no error in giving it.

[4] The court sustained demurrers to counts 4 and 6 of the complaint. If there was error in this ruling, which, however, we do not decide, it was harmless error, since the result would have been the same if these counts had remained in. We find no reversible error in the record, and the judgment, therefore, must be affirmed.

Affirmed. All the Justices concur.

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at a specified number of feet from the center feet wide and that the track was in the center of the track, that the right of way was 100 thereof; the statute limiting the right of way to what may be necessary, not exceeding 100 feet in width.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. 3777-3781; Dec. Dig. 934.*]

Appeal from Circuit Court, Barbour County; M. Sollie, Judge.

Action by the Montgomery & Eufaula Railway Company against E. M. Lovelace. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Peach & Thomas, for appellant. A. H. Merrill & Son and G. L. Comer, for appellee.

MAYFIELD, J. The action is the statutory one in the nature of ejectment.

of two counts, denominated "amended counts The complaint as last amended consisted 1 and 2." Demurrers were interposed and

1. EJECTMENT (§ 64*)-COMPLAINT-DESCRIP-overruled to both of these counts. The chief TION OF LAND IN CONTROVERSY.

A complaint in ejectment, which describes the land so that it can be located or identified. is not demurrable for uncertainty in the description of the land.

[Ed. Note.-F. other cases, see Ejectment, Cent. Dig. §§ 158-164; Dec. Dig. § 64.*] 2. EJECTMENT (8 63*)-COMPLAINT REQUI

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SCRIPTION.

A deed referred to a contract of sale and a map for the description of the land intended to be conveyed. The contract described the land as 15 acres adjacent to and south of a railroad right of way and fronting on a river about 1,040 or 1,050 feet and being about 370 feet across on the river front. The map did not by itself identify the land, because it did not show with certainty the direction of the river or the railroad. Held, that the land could not be located without the aid of extrinsic evidence showing the distance and the direction of the lines marked on the map, especially where the contract recited that the grantor would convey the 15 acres whenever it was surveyed by the purchaser and a deed presented.

[Ed. Note. For other cases, see Deeds, Cent. Dig. §§ 81-83; Dec. Dig. § 40.*] 4. EVIDENCE (§ 20*)-JUDICIAL NOTICE. The Supreme Court does not judicially know that the right of way of a railroad company authorized to acquire such right of way as may be necessary, not to exceed 100 feet in width, is 100 feet wide, or that the track is in the center, though most rights of way are 100 feet wide, and though the track is usually

in the center.

[Ed. Note.-For other cases, see Evidence, Cent. Dig. § 24; Dec. Dig. § 20.*]

5. APPEAL AND ERROR ($ 934*)-PRESUMPTIONS IN FAVOR OF JUDGMENT.

The Supreme Court cannot presume in support of a judgment in statutory ejectment, which describes the land sued for as bounded by a

ground of demurrer insisted upon is that each count was too indefinite and uncertain as to the description of the land sued for.

[1] We do not think either count was subject to demurrer for that reason. The lands described could be located or identified by the description in either count-which is all that is required. T. & G. R. R. Co. v. East Ala. R. Co., 75 Ala. 522, 51 Am. Rep. 475; Jinkins v. Noel, 3 Stew. 60; Griffin v. Hall, 115 Ala. 482, 22 South. 162; O'Neal v. Seixas, 85 Ala. 80, 4 South. 745.

[2] Count 2, however, is wholly bad, for the reason that it contains nothing but the description of the lands, and the parties.

[3] It may be that plaintiff's deed, which was its only claim of title, in connection with the Guice contract to which it made reference, and the deed introduced by defendant, were sufficient to show that the land sued for was that conveyed by plaintiff's deed; but it is very certain that it was not so conclusively and indisputably shown that the court could direct the verdict. Plaintiff's deed would have been void for uncertainty of description, of course, but for the reference to the Guice contract of sale and map for the description of the land intended to be conveyed. Counsel for appellee are in error in thinking that the description in the Guice contract of sale, and the map attached, neccessarily and certainly described the land sued for. The map is far from being self. explanatory in such degree as to identify the land sold, or to identify it, even if it be taken in connection with the contract adduced to show that it was of, or included, the identical land sued for; and no evidence whatever was offered to explain the map, such as the directions of the compass, distances, etc., nor to designate the land sued for or attempted

to be described in the contract of sale to, fronting on the Chattahoochee river about which it is attached. The only description, one thousand and forty or fifty feet, being therefore, of the land conveyed to plaintiff, is that in the Guice contract of sale and the map attached-which is far from being definite and certain. The description in this contract is as follows: "Fifteen acres of land adjacent to and south of the right of way of the South Western Railroad Company, and

about three hundred and seventy-five feet across, on the river front, lying in said state and county, and being marked off and laid out within the blue lines on the diagram hereto attached and marked 'Exhibit A.'"

The reporter will insert a copy of the map referred to in his report of this case.

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