John v. Birmingham Realty Co.

• Decision Date: 16 June 1911
• Citation: 55 So. 801,172 Ala. 603
• Parties: JOHN v. BIRMINGHAM REALTY CO. ET AL.
• Court: Alabama Supreme Court

55 So. 801

172 Ala. 603

JOHN v. BIRMINGHAM REALTY CO. ET AL.

Supreme Court of Alabama

June 16, 1911

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

Action by Jos. W. John, by his next friend, Sam Will John, against the Birmingham Realty Company and Bracket O. Watkins, for damages for injury caused plaintiff by reason of an explosion alleged to have occurred on account of leaving negligently some caps and explosives unprotected and exposed to sight on the public streets of the city of Birmingham. Judgment for defendants, and plaintiff appeals. Affirmed.

It appears from the complaint that the plaintiff was a boy under 10 years of age, and while rightfully passing along said avenue or said street, where the caps or explosives were alleged to have been placed by the defendants and left exposed and unguarded, plaintiff was attracted to them and picked one up, when it exploded, blowing away a thumb and three fingers. It is further alleged that defendants were grading said street, and putting in storm sewers and curbing and that they were using these explosives in making excavations, and that they left same along the street unprotected and unguarded.

Sam Will John, for appellant.

Percy Benners & Burr and A. F. Fite, for appellees.

ANDERSON J.

While the general affirmative charge should never be given whenever there is any evidence or a reasonable inference in opposition to same, yet the inference must be reasonable, and not merely conjectural or imaginary, and unless it is reasonable the giving of said charge is warranted.

The only theory upon which the plaintiff could recover in this case is upon proof, positive or circumstantial, that the caps found by him were placed or left there by the defendants, or their agents or servants. There was proof that one of the defendants (Watkins) had such caps in his commissary, but no proof that he was the only person in that section who had or handled such caps; and the fact that they were found near a tent in which was kept cement, sand, and tools, not shown to have been carried there from the commissary, was not sufficient to create even a reasonable inference that they belonged to or were carried there by Watkins or his servants. True, such caps are used in blasting, and the defendants were engaged in blasting; but the evidence shows that they did not use caps and fuse in doing so. On the other hand, there was proof of constant blasting in a...