Postal Telegraph Cable Co. v. Jones , 133 Ala. 217 ( 1901 )

McCLELLAN, C. J.

There is no merit in the contention for appellant that the complaint did' not aver the negligence counted on with sufficient particularity. The rule is that the duty to exercise care being shown, the failure to perform that duty, the negligence causing the injuries complained of may be well averred in the most general terms, little if at all short of the mere conclusions of the pleader; and this upon the entirely sufficient consideration, among others, that if the defendant has been guilty of negligence lie knows as well as or better than the plaintiff can in what that, negligence consisted. — Louisville & Nashville Railroad Co. v. Jones, 83 Ala. 376; Louisville & Nashville Railroad Co. v. Marbury Lumber Co., 125 Ala. 237; Mobile & Ohio Railroad Co. v. George, 94 Ala. 214; Bessemer Land & Imp’t Co. v. Campbell, 121 Ala. 50; Montgomery Street Railroad Co. v. Armstrong, 123 Ala. 233; Ga. Pac. R’y Co. v. Davis, 92 Ala. 307; Stanton v. Louisville & Nashville Railroad Co., 91 Ala. 384; Ensley Railroad Co. v. Chewning, 93 Ala. 26; Laughran v. Brewer, 113 Ala. 509; Louisville & Nashville Railroad Co. v. Orr, 121 Ala. 489; Memphis & Charleston Railroad Co. v. Martin, 117 Ala. 367, and many other cases.

The 'Objection taken by demurrer that the complaint does not sufficiently show a duty on the pant of the defendant to keep its wires out of the way of travelers along public roads is too palpably unfounded to require discussion. The complaint does aver such duty, and the courts take cognizance of it even wi'tliout averment. In this respect the case is analogous to that of Louisville & Nashville Railroad Co. v. Marbury Lumber Co., supra, in which the complaint averred that the defendant negligently set fire to and burned plaintiff’s cotton. We know in this case that it was defendant’s duty to exercise care to avoid obstructing public roads, as we knew in that it was'defendant’s 'duty to exercise care ito avoid burning plaintiff’s cotton.

All the facts averred in pleas 4, 5 and 7 were provable under’' the general issue: The averments of these pleas were mere denials of negligence; and on this ground the appellant can take nothing by reason of the •court having sustained the demurrer to those numbered 4 and 5. Both those and plea 7 might well have been stricken on [the ground referred to.

Plea 7 was allowed to remain in the case, however, and appellant’s counsel insist that it .was proved on the trial. We do not find that it was proved. The plea alleges that the defendant used due care to prevent ifs wires from becoming detached from its poles. The evidence fur plaintiff ivas that the wires at the point they fell and obstructed the highway had been attached to the pole from which they became disengaged, by means of a rotten cross bar, etc. On this evidence it was clearly a question for the jury ivhether the due care alleged had been proved. The plea also alleges that the defendant did not know and by the exercise of reasonable care could not have known that the wires had become detached from the pole until after the injury to plaintiff, but the evidence for the plaintiff showed that ithe wires had been detached for more than two days before the injury was inflicted, and it ivas open to the jury to say upon this evidence that due care had not been exercised to discover and remedy the defective condition of the wires. Something is said in the case about an instrument in use in defendant’s offices by the use of Avhich trouble with the wires may be detected and located. We do not understand that this instrument will indicate the detachment of a wire from a pole and its consequent suspension in ithe Avay of travelers across a public road, or will indicate anything at all so long as the current of electricity carried by the Avire is not obstructed. It indicated nothing in this case until the current Avas diverted from the wire in consequence of plaintiff’s wagon and team and person coming iu contact Avith it. The evidence about this instrument cuts no figure in respect of the injury whether defendant was negligent in allowing the wires ito become detached from the pole and sag into the high way for two or three days.

What Ave haA-e said in respect of the complaint applies to the third charge requested by defendant. On the evidence the jury Avere fully Avarranited in finding that the cross arm was rotten, that it was so rotten, or, being rotten, was used by defendant in consequence of its, defendant’s, negligence, and that such negligence in respect of ¡the cross arm was the efficient cause of plaintiff’s injury, entitling him to a verdict.

There being not only the eAÚdence as to the rottenness of the cross arm from Avhich damnifying negligence was inferable by the jury; but also evidence that the wires bad been down (two or more days before tbe injury from which it was open to tbe jury to infer such negligence, and there being also evidence of the alleged injury, it requires no argument to demonstrate that the affirmative charge -requested by defendant was properly refused.

lit becomes necessary to remark only, because the contrary is insisted upon, that a -charge to the jury “that if they find from the evidence that no doctor was employed by the plaintiff to treat his alleged injuries, the jury may look to thi-s fact, if found from the evidence to be a fact, as a circumstance tending to show that the plaintiff was not seriously hurt,” is such a singling out and giving undue prominence to a part of the evidence as is unwarranted and has been over and over again condemned by this court.

The evidence tended to sh-owr that the plaintiff had continued to suffer more or less from the injury ever since it was received. The question to the witness Lawler : “Have you not heard the plaintiff give expressions of pain and suffering since that night,” covered the time under inquiry, -an'd was not objectionable.

There was no inconsistency on the part of the circuit court in giving charge 10 for -defendant and refusing the general charge asked by defendant. The jury were left -free by this 10th charge to find that the wires, poles and cross arms -of defendant’s line were not in good and safe 'condition when Worthy last inspected the line, and upon that to return a verdict for the plaintiff, while all this would have been denied them by the affirmative charge. This matter is made a ground of the motion for a new trial, and is the only ground of that motion -specially insisted upon by counsel. The contention in this connection is not that the court should have granted a new trial for having erroneously refused to give the general charge for defendant — that is another ground of the motion — -but that a new trial should be granted to defendant because the court gave charge 10 ait its request. We confess we do not see how the defendant can ask a new trial on t-he ground that the court in a specified instance ruled at his request in his favor.

We do not understand that any of the other grounds of the motion for a new ¡trial, except such as we have above considered apart from that motion, are insisted on. Whether so or not, they are without merit.

Affirmed.