Opinion
4 Div. 605.
November 5, 1931.
O. S. Lewis, of Dothan, for petitioner.
The plaintiff, in an attempt to develop the fact that fire was communicated to his blueberry patch by sparks emitted from defendant's engine and boiler, asked the questions to which objections were sustained, and the rulings sustaining such objections precluded plaintiff from meeting the burden of proof and necessitated a nonsuit. Schillinger v. Wickersham, 199 Ala. 612, 75 So. 11; Priebe v. Southern Ry., 189 Ala. 427, 66 So. 573; Bush v. Russell, 180 Ala. 590, 61 So. 373; Central of G. v. Wilson, 215 Ala. 612, 111 So. 901; Deason v. Alabama G. S. R. Co., 186 Ala. 100, 65 So. 172; Code 1923, §§ 9467, 6431.
Farmer, Merrill Farmer, of Dothan, for respondent.
The evidence offered would not have made out a case under the counts in question and with all such evidence in, defendant would have been entitled to a directed verdict. Tinney v. Central of Ga. R. Co., 129 Ala. 523, 30 So. 623.
The action of the plaintiff as to the counts for the destruction by fire of the blueberry bushes and the ruling (and evidence relating thereto) was merely an amendment of the complaint striking out that claim, and was not within the statute for the taking of a nonsuit because of adverse ruling, and the ruling on evidence pertaining thereto is not now for consideration under said statute.
The trial proceeded to judgment on the other counts.
The writ is therefore denied.
Writ denied.
ANDERSON, C. J., and BOULDIN and BROWN, JJ., concur.