Thierry v. Oswell , 212 Ala. 418 ( 1925 )

BOULDIN, J.

Plea (D) avers that the deceased knew there was dangerously deep water at the end of the pier. The location is thus shown with the same certainty as in the complaint. Such knowledge would' call for ordinary care against such danger around the end of the pier, or on either side of it at that point. It would call for a lookout for a danger zone at and about the end of the pier. - Taken in connection with the complaint, it covers the case of going to the end of the pier through the shallow water of the bay, and sufficiently shows a causal connection between the going into a known place of danger and the .fatal result. If the plea be construed as covering a case of going out on the pier over water known to be dangerously deep, and there falling from the pier, it would be sufficient, in the absence of averment that the pier was defectively constructed. The gravamen of the complaint is negligence in the matter of warnings and precautions against drowning of persons while bathing in the bay. - Moreover, the undisputed evidence is that Miss Thierry was in the water, and not on the pier, when she fell or was precipitated from a floating log into the deep water, and was drowned. No issue on falling from the pier was before the jury. Any error in rulings on this plea, as applied to a case of that sort, would be harmless here. We find no error in overruling the demurrer to this plea lettered (D).

Plea (I) deals with the question of “warning” as a basis for. a plea of contributory negligence. Its sufficiency depends upon whether such warning is 'shown as to give notice of a danger which, by the. exercise of ordinary care, would have been avoided. We think the averment that the warning was given “shortly beforehand,” referred to conditions named in the complaint, is sufficient as to the time of giving the warning. The important question is, Does the plea aver a sufficient warning? The plea avers Miss Thierry was “warned or told shortly beforehand that said diving or swimming, hole was dangerously deep,” and that nevertheless she went into the hole and was drowned. The court in consultation has reached the conclusion that the plea, by reference, fairly imports a warning of the dangerously deep water described in the complaint, and called for substantially the same proof as plea (D). The same holding applies to plea (J).

Under the evidence as a whole, it was a question for the jury whether any warning, and, if so, the nature of it, was brought home to Miss Thierry, and whether, regardless of warning, she knew, or by the exercise of ordinary care would have known, the danger before her. A discussion of the tendencies of the evidence would be out of place here. Its probative force was for the jury.

Charge 7, given for defendant, hypothesizes knowledge of the existence of the swimming hole referred to in the complaint, and failure to use ordinary care to avoid the same. It was properly given. Charge 8 hypothesizes that deceased “was notified of the danger in time to have avoided the injury, and did not use ordinary care to avoid the danger.” The evidence of Leo Hudoff was to the effect that Joe Pierson “told them where the hole was, and told them if they could not swim to keep away from it.” This was at the time of getting the log before going into the deep water. This evidence tends to support the charge. Notwithstanding deceased may have had no previous knowledge of the existence of the swimming hole described in the complaint, if she was notified of the danger in time to avoid it by ordinary care, this was sufficient under the general issue. The only “danger” to which the charge can he referred, under the evidence, was going into the deep water after notice. If misleading for want 'of certainty, the remedy was by explanatory* charge.

Charges 11, 12, 18, 14, and 15 recite the averments of negligence in the several counts of the complaint, properly place the burden of proof on plaintiff as to the presence of such negligence, and that it was the proximate cause of the fatal injury.

There is no error in giving either of these charges. Charge 11 might have been refused for using the words “proximate cause” where “proximate result” is meant. This, however, is so self-correcting as not to render it reversible error.

Charges 16 and 17 predicate a verdict for defendant on the facts averred in pleas (D) and (C), respectively, save that they omit the averments of the pleas that such negligence proximately contributed to the drowning. Charges 7 and 8 have a like omission.

There is no fixed formula for written instructions. They should clearly state the law as applied to the evidence in the case before the jury. If the facts hypothesized show the causal connection within themselves, that is sufficient. Applying this standard to these charges in the light of the issues made by the pleadings and the evidence, we find no error in them. Going into the deep water was the unquestioned cause of drowning. The issue is, by whose fault did she go there?

Charges 18 and 19 predicate a verdict for defendant upon the same facts set out in pleas (I) and (J), respectively. What we have said as to the pleas applies to these charges.

Affirmed.

ANDERSON, C. J., and SOMERVILLE and THOMAS, JJ., concur.