Wells v. Gallagher , 144 Ala. 363 ( 1905 )

DOWDELL, J.

The complaint contained two counts; the first counting on simple negligence, and the second on wantonness. Demurrers were interposed by the defendants to each of said counts, which demurrers were overruled by the court. The demurrer questioned the sufficiency of the averments of the first count as to showing any duty owing by the defendants to the plaintiff. In an action to recover damages for alleged negligence, the complaint is sufficient if it alleges a duty owing the plaintiff by the defendant, or states facts from which the law will imply the duty. — L. & N. R. R. Co. v. Marbury Lumber Co., 125 Ala. 237, 28 South. 438, 50 L. R. A. 620. Here the facts stated are that the bomb or explo sive which produced the injury was caused to be or remain in a public alley in the city of Birmingham, and that this was negligently done, and as a proximate consequence of such negligence the plaintiff received his injuries. The law, we think, -clearly implies a duty not to place, or cause to be placed, or cause to remain, in the public .highway, a bomb or explosive capable of inflicting injury by being exploded. On the facts stated the law implies a duty, and it was therefore not necessary to aver it in terms in the complaint. It is not pointed out in the demurrer wherein the count is “vague,, indefinite, and uncertain.” It is unimportant how long the bomb remained in the public alley, if it remained long enough to cause injury; and it is equally unimportant whether the plaintiff, a boy under 14 years of age, exploded tho bomb in the public alley, where it is alleged to have been negligently placed, or whether, he carried it to an adjacent yard and there exploded it, and received the injury complained of. In either case the alleged injury is the proximate consequence of the alleged negligence. We are of opinion that the. first count sufficiently stated a cause of action, and was, therefore, not open to the demurrer interposed.

We need not consider the ruling on the demurrer to the second count, since it appears that the court gave the general affirmative charge in favor of the defendants on this count.

There was no error in overruling the defendants’ objections to the question put by plaintiff to the witness Mrs. Gallagher in reference to' the habit of children playing in the alley in question. The evidence offered was competent in rebuttal of this evidence. Moreovei’, at the lime the question was asked, the second count of the complaint charging wantonness was in, and the fact that children were in the habit of playing in the alley would become a circumstance in the direction of showing elements constituting wantonness.

Charge 1, requested by the defendants, was the general affirmative charge to find in favor of the defendants; and charge 2 was the general charge to find in favor of the defendants as to the first count. It was open to the jury, under the evidence, to find all the facts alleged in the first count to have been proven, and consequently these charges were properly refused.

Written charges 3, 4 and 6 were each and all faulty in permitting consideration of due care on the part of the defendants’ servant in ascertaining the dangerous character of the bomb or explosive at the time he placed it in the alley. Charge 5, requested by the defendant, besides being obscure, was an invasion of the province of the jury.

We are unable to see that the trial court committed any error in overruling the motion for a new trial by the defendant Wells, based on the grounds of surprise, mistake. or fraud. We fail to see that there was any fraud perpetrated upon this defendant by his co-defendant, Williams. Moreover, as to the defense which the defendant Wells claims that he might have interposed, to the effect that he was in no wise connected with the management and control of the Bijou Theatre, opposed to his affidavit stating these facts was the evidence of Fleming Humphreys, the janitor, who swore that he was employed by Williams and Wells, and the evidence of Will Johnson, the property man, who'swore that both Humphreys and himself were working for Williams and Wells. Besides this, the testimony of Williams tended to show that Wells, jointly with himself managed and controlled a theater. These three witnesses were sworn and examined on the original trial in behalf of the defendants. This evidence was offered on the hearing of the motion for the new trial, and we do not think the unaided affidavit was enough to overcome it and justify the court in awarding the defendant Wells a new trial.

We find no reversible error in the record, and the judgment appealed from will be affirmed.

Affirmed.

Haralson, Tyson & Denson, JJ., concur.