Alabama Power Co. v. Conine

This is the second appeal in this case. See 207 Ala. 435,93 So. 22. The trial court submitted this case to the jury on the wanton as well as the simple negligence counts by refusing the general charge of the defendant as to each of the counts. The plaintiff relied upon the conduct of the defendant's superintendent or representative, Rodgers, as establishing his cause of action; therefore, in order to constitute wantonness, it was necessary for the plaintiff to show that said Rodgers was conscious of his conduct and conscious from his knowledge of existing conditions that injury would likely or probably result from his conduct, and with reckless indifference to consequences he consciously and intentionally did some wrongful act or omitted some known duty which produced the injurious result. Birmingham L. . P. Co. v. Cockrum, 179 Ala. 373,60 So. 304, and cases there cited. The proof not only fails to show that Rodgers was conscious of the fact that the wires suspended from the pole south of the burned building, or gap in said wires, was so heavily charged as to render the same dangerous to human life, but shows that he was under the impression that the same was not charged and was not in a dangerous condition. True, he was informed just before the fatal injury that said wires were heavily charged, but he immediately attempted to remove the danger when he and Conine met their death, but the entire record negatives rather than affirms that he was conscious of the dangerous condition of the wire prior to that time. We therefore hold that the trial court erred in refusing the defendant's requested general charge as to each of the wanton counts.

Since the defendant was entitled to the general affirmative charge as to the wanton counts, it is needless to discuss the rulings upon the demurrers thereto. We suggest, however, that while count 3 A was treated as a simple negligence one, we regard it as a charge of wantonness.

The trial court did not err in overruling the plaintiff's demurrer to pleas 2 and 4. Osborne v. Ala. Co., 135 Ala. 571,33 So. 687.

There was sufficient evidence to afford an inference of negligence on the part of Rodgers in leaving the wires hanging on the south pole without using precautionary measures to see that they would not become charged, or without clipping them high up, as was done with those on the north side. Indeed, counsel for the appellant do not contend that the plaintiff did not make out a case of simple negligence, but insist that the general charge for the defendant should have been given as to these counts because the intestate was guilty, as matter of law, of proximate contributory negligence as set up in special pleas 3 and A. Independent of the replications thereto and questioning the aptness or sufficiency of same to plea 3, we do not think that said pleas, or either of them were proven without dispute so as to deprive the jury of passing upon this phase of the case. As to plea 3, it was a question for the jury to determine whether or not the intestate saw and knew that Rodgers had been shocked and knocked to the ground before seizing the wire in order to relieve him, or whether or not the intestate was co-operating with Rodgers in an effort to remove the wire, and seized the same contemporaneous with him, at least before he discovered that said Rodgers had been severely shocked and knocked to the ground. One of the witnesses does testify that the intestate seized the wire after Rodgers had been shocked and was falling or had fallen, but some of the other witnesses left it open for the jury to find that the intestate seized the wire before he knew that Rodgers was shocked and had fallen. For instance, the evidence of J. W. Pepper left it open to the jury to find that the intestate seized the wire before or at the same time Rodgers did, and before Rodgers had been knocked to the ground, or before he (the intestate) discovered that Rodgers had been severely shocked.

As to plea A, it was a question for the jury to determine whether or not the intestate seized the wire with the knowledge that it was charged with "a high and dangerous voltage of electricity," as charged in said plea. True, the intestate and Rodgers were both informed, just before going to the wire, that it was charged and had emitted sparks; but the intestate, after he and Rodgers had gotten their information, was repeatedly assured by Rodgers that there was no danger from said wire, and as Rodgers was in charge of the plant and presumably had a superior knowledge of electricity, the jury could have inferred that the intestate relied on his assurance, and was not therefore conscious that it was charged with a high and dangerous voltage when taking hold of same, notwithstanding he had been previously informed that it was charged — provided, of course, he seized the same before discovering that Rodgers had been shocked and knocked down, as discussed in dealing with plea 3. If he seized the wire after he discovered that Rodgers had been dangerously shocked and knocked down, he, of course, did so with the knowledge that it was dangerously charged nothwithstanding the previous assurance of Rodgers that it was not dangerous, but which fact, as above demonstrated, was a question for the jury.

As to whether or not the intestate seized the wire with a knowledge of the danger, but in order to rescue Rodgers, and whether or not he would be chargeable with negligence under such conditions, although Rodgers was guilty of negligence in placing himself in a position of peril, is a question discussed in appellant's supplemental brief, but one not presented by the pleading.

The judgment of the circuit court is reversed, and the cause is remanded.

Reversed and remanded.

SAYRE, GARDNER, and MILLER, JJ., concur.