Childers v. Samoset Cotton Mills

Citation215 Ala. 53,108 So. 851
Decision Date06 May 1926
Docket Number7 Div. 370
PartiesCHILDERS v. SAMOSET COTTON MILLS.
CourtSupreme Court of Alabama

Rehearing Denied June 24, 1926

Appeal from Circuit Court, Talladega County; A.P. Agee, Judge.

Action by S.S. Childers, as administrator of the estate of L.E Childers, deceased, against the Samoset Cotton Mills. From a judgment for defendant, plaintiff appeals. Affirmed.

See also, 213 Ala. 292, 104 So. 641.

Anderson C.J., and Thomas, J., dissenting.

J.B. Brown, of Cullman, and Fred G. Koenig, of Birmingham, for appellant.

Knox, Dixon, Sims & Bingham, of Talladega, for appellee.

BOULDIN J.

The questions presented for review on this submission relate to rulings of the trial court on demurrers to pleas of contributory negligence Nos. 6 and 7 as addressed to count A of the complaint. Plaintiff interposed many grounds of demurrer aptly raising the objections here insisted upon to the sufficiency of these pleas. These demurrers were overruled.

Upon careful study of plea No. 6, we think its natural and obvious meaning is that death resulted from negligence in picking up the bar under conditions known to be dangerous. Other averments of the plea recite the conditions from which the danger arose, with knowledge that these conditions rendered the bar dangerous to the touch.

Emphasis is laid upon the word "liable" in the clause, "as such tools were liable by being placed therein to be charged with electricity." It is true the word "liable," when used alone in defining the degree of hazard, is not sufficient to impute negligence. "An event is liable if its occurrence is within the range of possibility." A.G.S.R.R. Co. v. Smith, 209 Ala. 301, 96 So. 239; Terrill v. Walker, 5 Ala.App. 535, 59 So. 775. In the connection here used the clause relates to the cause or condition, rather than the degree of peril. Dangerous because liable to be charged with electricity is the import of the clause. In neither of the above cases was the word coupled with averments that the act was known to be dangerous, but, on the contrary, with averments denoting no such present known risk as indicated a want of ordinary care. Indeed, the Terrill-Walker Case, supra, relied upon by appellant, involving a street crossing accident, notes the difference in these words:

"*** If a person, in crossing a street or public highway, sees, in dangerous proximity, an approaching team, automobile, or other vehicle, and that its speed is such as to render the attempt to cross in front of it dangerous, and under such circumstances walks in front of it and thereby suffers injury, such person would be guilty of contributory negligence."

The word "dangerous" is used in that case, and constantly employed in law writing, pleading, and common parlance to denote that degree of peril which, when known, and disregarded, marks such want of care as constitutes negligence.

The plea is construed as a whole and in connection with the complaint. Both show death was the direct result of taking hold of the highly charged bar. Having knowledge...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT