Central of Georgia Ry. Co. v. Motherwell

GARDNER, Justice.

Upon former trial (Central of Georgia Ry. Co. v. Motherwell, 224 Ala. 504, 140 So. 547), count 3 (upon which the cause was submitted to the jury) rested for recovery on the theory of subsequent negligence, and placed the location of the accident “at or near the intersection of Twenty-Third Avenue with Twenty-Seventh Street, North.” Plaintiff insisted by his evidence that at the time of the injury he was walking and about to cross the track at this intersection, while defendant’s proof tended to show that he was in fact lying face down and with his foot across the rail, and…