Birmingham Electric Co. v. Kirkland

• Decision Date: 11 October 1928
• Docket Number: 6 Div. 176
• Citation: 218 Ala. 429,118 So. 640
• Parties: BIRMINGHAM ELECTRIC CO. v. KIRKLAND.
• Court: Alabama Supreme Court

118 So. 640

218 Ala. 429

BIRMINGHAM ELECTRIC CO. v. KIRKLAND.

6 Div. 176

Supreme Court of Alabama

October 11, 1928

Rehearing Denied Nov. 30, 1928

Appeal from Circuit Court, Jefferson County; Richard V. Evans Judge.

Nesbit & Sadler, of Birmingham, for appellant.

Fort Beddow & Ray, of Birmingham, for appellee.

THOMAS J.

The case was given to the jury under count A. The other counts were withdrawn.

Assignment of error raises the question of the sufficiency of count A as against the demurrer directed thereto. The duty owing by defendant to the plaintiff was shown.

The count was drawn upon the theory or the general rule of duty not to make dangerous and extraordinary use of the public highway as to cause the injury for which the suit was brought. Alabama By-Products Corp. v. Cosby, 217 Ala. 144, 115 So. 31. The substance of the count is as follows:

"*** The defendant's servants, agents, officers, or employees, while acting in line with and within the scope of their employment, did leave a greatly dangerous thing, to wit, a vessel in which a large fire was burning and from which there was being emitted much smoke and blazes and in which the coals of fire were glowing and which was about 15 inches high, exposed and unguarded with no barrier erected thereabout and with no protection to prevent small children from coming in contact therewith on the public streets in the city of Birmingham at, to wit, between Sixth and Seventh Aves. and Fortieth Street North."

The averment is that the defendant or its duly authorized agent, in the discharge of the duties of his employment, did leave a dangerous thing or agency in the public street, causing the injury to plaintiff. It cannot be urged successfully by defendant master, on demurrer, that the same is open to the inference that some other person than defendant or its authorized agent was responsible for the presence of such "dangerous thing" on the street, at the point and under the circumstances described, and that this caused the injury to plaintiff. As to this the averment is explicit. The leaving in the public street, unguarded, an inherently dangerous instrumentality raises the duty, at the time, place, and circumstances detailed, to exercise reasonable care that children and others rightfully there do not suffer injury from such unusual and dangerous condition or instrumentality. Alabama By-Products Corp. v. Cosby, 217 Ala. 144, 115 So. 31; Thompson v. Alexander City Cotton Mills, 190 Ala. 184, 67 So. 407, Ann.Cas.1917A, 721. Defendant was charged with the knowledge of the circumstances and reasonably probable injurious results that may come from such unguarded and dangerous condition or instrumentality placed by it in the street where the injured child had the right to be and was, when injured.

Count A was grounded upon the common-law duty and rule of negligence in and about the placing, leaving, or handling a greatly dangerous thing or condition located as it was, in or near the public highway. For general authorities, see French v. Holt, 53 Vt. 364; City of Milwaukee v. Davis, 6 Wis. 377. That pleading was drawn under Thompson v. Alexander City Cotton Mills Co., 190 Ala. 184, 67 So. 407, Ann.Cas.1917A, 721, wherein the rule of conduct in the premises is thus declared:

"Although a dangerous thing may not be an attractive nuisance, yet if it is left exposed so that children are likely to come in contact with it, and their getting in contact with it is obviously dangerous to them, the persons exposing the dangerous thing should reasonably anticipate the injury that is likely to happen to them, and is bound to take reasonable pains to guard it so as to prevent injury."

The words employed, "leave" and "left," used respectively in the count and in the excerpt from the Thompson Case, have a broad meaning, and are expressive of the duty of defendant in the premises, though the instrumentality described be not specially attractive to children by reason of childish instinct. The duty in the premises rested upon defendant, by reason of the obviously dangerous thing being left or exposed unguarded on the street, where persons had the right to be, and were likely to come in contact therewith to their injury. The person so leaving and exposing such dangerous instrumentality was required, by the time, place, and circumstances, to reasonably anticipate the likely and probable injury from it being so left or exposed on the street, without reasonable pains to guard it so as to prevent injury to persons coming upon the street, which embraced the infant of less than seven years of age who was injured. Alabama By-Products Corp. v. Cosby, supra; Thompson v. Alexander City Cotton Mills Co., supra.

The count was not demurrable on the further ground for not averring the length of time the dangerous instrumentality remained unguarded upon the street. The case of Shelby Iron Co. v. Morrow, 209 Ala. 116, 119, 95 So. 370, cited by appellant, was of an obstruction on the highway in the country, not inherently dangerous but merely likely, and did frighten a horse passing along that road. In B.R.L. & P Co. v. Smyer, 181 Ala. 121, 61 So. 354, 47 L.R.A. (N.S.) 597, Ann.Cas.1915C, 863, the different rules prevailing as to urban and rural highways are discussed, and in urban communities all interruptions and obstructions upon the streets "must be justified by (the reasonable) necessity" of the case. In the instant complaint the charge is that the defendant left unguarded a greatly dangerous thing in the public street, knowing that children were likely to or probably would come in contact therewith and be injured. The reasonable necessities of the case, or circumstances of the instrumentality on the street at the time, did not...