W. Perry Calhoun and T. E. Buntin, both of Dothan, for appellees. It was not error to give the affirmative charge for defendants and to direct a verdict for defendants. Columbus W. Ry. Co. v. Bradford, 86 Ala. 574, 6 So. 90; Mackintosh v. Wells, 218 Ala. 260, 118 So. 276; Brawley v. B. R. L. . P. Co. (Ala. Sup.) 39 So. 919; Commonwealth Life Ins. Co. v. Barr, 218 Ala. 505, 119 So. 11; Peters v. Southern R. Co., 135 Ala. 533, 33 So. 332; Langley Bus Co. v. Messer, 222 Ala. 533, 133 So. 287; Lawson v. Mobile Elec. Co., 204 Ala. 318, 85 So. 257; Ala. Power Co. v. Bryant, 226 Ala. 251, 146 So. 602; Kress Co. v. Barratt, 226 Ala. 455, 147 So. 386; Wright v. Richards, 214 Ala. 678, 108 So. 610. It was proper for the trial court to amend the bill of exceptions and the same as amended should be incorporated in the record on appeal. Holloway v. Henderson Lbr. Co., 194 Ala. 181, 69 So. 821; Mauney v. Electric Cons. Co., 210 Ala. 554, 98 So. 874; Kinney Bros. v. Johnson, 21 Ala. App. 609, 110 So. 561. BROWN, Justice.
Code 1923, ยง 9507; Seaboard Air Line R. Co. v. Savage, 215 Ala. 96, 109 So. 748; Lowe v. Reed, 207 Ala. 278, 92 So. 467; American Ry. Exp. Co. v. Dunnaway, 207 Ala. 392, 92 So. 780. An instruction to the jury which assumes as proven facts which are in dispute is erroneous and constitutes reversible error. Birmingham R., L. P. Co. v. Williams, 114 Ala. 381; Wellman v. Jones, 124 Ala. 580, 27 So. 416; Jonas v. Field, 83 Ala. 445, 3 So. 893; Kinney Bros. v. Johnson, 21 Ala. App. 609, 110 So. 561; Davis v. Humphrey, 217 Ala. 30, 114 So. 412; Baker v. Eastis, 215 Ala. 402, 110 So. 705; Shipp v. Shelton, 193 Ala. 658, 69 So. 102; Harris v. Blythe, 222 Ala. 48, 130 So. 548; Williams v. Bolding, 220 Ala. 328, 124 So. 892; Bradshaw v. Hoskins, 223 Ala. 23, 134 So. 625. A charge injecting into the case issues which are not properly made by the pleadings should be refused.
Charges 1 and 2, given at the request of plaintiff in writing, were erroneous, in that each of said charges, when standing alone, and independent of other instructions, assumed as a fact proven that the defendant was guilty of subsequent negligence, when this was one of the most seriously contested and controverted issues in the case, and upon which the evidence was in sharp conflict. In fact, to establish this fact, the plaintiff relied almost, if not entirely, upon inferences and presumptions. Kinney v. Johnson, 21 Ala. App. 609, 110 So. 561; City National Bank v. Nelson, 214 Ala. 297, 107 So. 849. The case of Tingle v. Worthington, 215 Ala. 126, 110 So. 143, is really not in conflict with the authorities cited above. That case merely holds that under the facts as there stated and upon the whole record, rule 45 of the Supreme Court should be applied. That is the question now confronting this court.