Birmingham Ry., Light & Power Co. v. Jackson

• Decision Date: 16 November 1916
• Docket Number: 6 Div. 196
• Citation: 73 So. 627,198 Ala. 378
• Court: Alabama Supreme Court
• Parties: BIRMINGHAM RY., LIGHT & POWER CO. v. JACKSON et al.

73 So. 627

198 Ala. 378

BIRMINGHAM RY., LIGHT & POWER CO. v. JACKSON et al.

6 Div. 196

Supreme Court of Alabama

November 16, 1916

Rehearing Denied Dec. 30, 1916

Appeal from City Court of Birmingham; A.H. Alston, Judge.

Action by Irene Jackson and another, as administrators, against the Birmingham Railway, Light & Power Company. From judgment for plaintiffs, defendant appeals. Affirmed.

Tillman Bradley & Morrow and John S. Stone, all of Birmingham, for appellant.

Erle Pettus, of Birmingham, for appellees.

GARDNER J.

The first count relies for recovery upon simple negligence on the part of defendant, by its servants or agents while acting in the line and scope of their employment, in leaving a live wire exposed on one of the public streets of the city of Birmingham, with which wire plaintiff's intestate came into contact and was killed. The count was not subject to the demurrer interposed. Postal T.C. Co. v. Jones, 133 Ala. 217, 32 So. 500; Sheffield v. Morton, 161 Ala 153, 49 So. 772; B.R., L. & P. Co. v. Cockrum, 179 Ala. 372, 60 So. 304.

Count 3, as amended, was fully treated by the Court of Appeals on former appeal. B.R., L. & P. Co. v. Jackson, 9 Ala.App. 588, 63 So. 782. We approve that court's finding as to the sufficiency of said count. Demurrer to the count as amended was properly overruled.

Count 3 as amended charges wanton or willful injury, and there was no error in sustaining the demurrer to the pleas of contributory negligence in so far as they attempted to set up such defense as against this count.

Numerous exceptions were reserved to portions of the oral charge of the court, some of which will be found set out in the above statement of the case. The argument on the first exception as to simple negligence is based on the failure of the definition to show that the duty breached must have been one owing to the party injured, citing, among other authorities So. Ry. Co. v. Drake, 166 Ala. 545, 51 So. 996.

The evidence is without dispute that on the night previous to the day on which the intestate was killed there was an unusual storm in the city of Birmingham, many houses and trees being blown down, and that a live wire was seen hanging from one of defendant's electric light poles on the morning following the storm, with which wire the intestate came into contact between the hours of 10:30 and 12 a.m., at the intersection of two public streets in the city of Birmingham.

If it be conceded that, according to the strict rule, the definition of simple negligence, to which exception was reserved, was incomplete for the reason assigned in the argument, yet it is clear from the record and from the entire oral charge that the jury fully understood that the breach of duty must have been one in this particular case which was owing to the intestate as a citizen entitled to the use of the public streets.

The objection to the definition as to wantonness, constituting exception number 2, is its failure to charge a knowledge of the situation. This objection is met, however, by the concluding part of the sentence of which the exception forms a part, as follows: "A person does it *** with that absolute disregard of the consequences of the act after he has had knowledge of the conditions."

We see no merit in the exception numbered 3 to the oral charge. That portion of the oral charge covered by this exception, as set out in the statement of the case, was merely a part of the sentence wherein the court had instructed the jury as to the company's duty to make inquiries over its lines after such a storm as would...