Wells v. Gallagher

• Decision Date: 21 December 1905
• Citation: 144 Ala. 363,39 So. 747
• Parties: WELLS ET AL. v. GALLAGHER.
• Court: Alabama Supreme Court

39 So. 747

144 Ala. 363

WELLS ET AL. v. GALLAGHER.

Supreme Court of Alabama

December 21, 1905

Appeal from Circuit Court, Jefferson County; A. A. Coleman, Judge.

"To be officially reported."

Action by Christopher Gallagher, a minor, by his next friend, Frank H. Gallagher, against Jake Wells and another. From a judgment for plaintiff, defendants appeal. Affirmed.

The complaint was in the following words: "Plaintiff claims of the defendants $10,000 as damages, for that heretofore, to wit, on the 14th day of December, 1903, defendants had charge or control of the Bijou, a theater in Birmingham, Ala., to wit, at or near the corner of Third avenue and Seventeenth street, in said city; that at said time there was a public alley near to and back of said theater, and a bomb cartridge, or other explosive substance was in said alley at or near the said theater; that on said day said bomb cartridge, or other explosive substance, by reason of being in said alley, was caused to explode, and as a proximate consequence thereof plaintiff, who was under 14 years of age was burned, shocked, and otherwise injured by said explosion lost the sight of one eye, was crippled and disfigured for life, was made sore and sick, was caused to suffer great mental and physical pain, was rendered for a long time unable to work and earn money, was rendered permanently and less able to work and earn money, his health and physical stamina was greatly and permanently impaired, his nervous system was wrecked, and he was put to great trouble, inconvenience, and expense for medicine, medical attention, care, and nursing in and about his efforts to heal and cure his said wounds and injuries. Plaintiff alleges that said bomb, cartridge, or other explosive substance was caused to be or remain in said alley as aforesaid, and said explosion occurred, and plaintiff suffered said injuries and damages as aforesaid, by reason and as a proximate consequence of the negligence of defendants' servant or agent, acting within the line and scope of his authority as such, in this, to wit: said servant or agent negligently caused said bomb, cartridge, or other explosive to be or remain in said public alley." The second count was a practical copy of the first, and alleged in addition thereto, that the defendants' servant or agent wantonly or intentionally caused said explosive to be or remain in said public alley. Demurrers were interposed to these counts. The counts were amended by inserting in each count, immediately after the words "defendants' servant or agent," where they occur together in each of said counts, the words "whose name is unknown to plaintiff." Demurrers were filed to the counts as amended, and the following grounds assigned: (1) Counts were vague, indefinite, and uncertain. (2) Counts do not show that the defendants violated any duty which they owed to plaintiff. (3) It does not appear that the defendants are responsible for the explosive that injured the plaintiff. (4) It does not appear that the defendants knew or had reason to believe that the explosive would attract children. (5) It is not averred in said count how long the explosive remained in said alley. (6) It is not alleged in said count that any negligence of defendants contributed directly to produce the injuries complained of. (7) It is not shown that defendants knew or had reason to believe that the plaintiff would be near where said bomb was or remained. These demurrers being overruled, the defendants filed the general issue and three pleas of contributory negligence. Demurrers were sustained to the pleas of contributory negligence as answers to the second count.

The defendants requested in writing the following charges, which were refused: "(3) Even though you should believe from the evidence that the janitor did sweep the object out in the alley which exploded and injured plaintiff, you cannot render a verdict in favor of the plaintiff, unless you also believe from the evidence that the said janitor, at the time he so swept said object out in the alley, knew that it was an explosive and dangerous to children. (4) Even though you should believe from the evidence that the janitor did sweep the explosive substance out in the alley which injured the plaintiff, you cannot find for the plaintiff in this case unless you also believe from the evidence that said janitor knew, at the time he so swept the explosive...