Birmingham Railway, Light & Power Co. v. Jackson

PELHAM,' J. — As amended, the complaint consisted of three counts. Count 2 having been withdrawn by the [593] plaintiff (appellee here), the case was submitted to the jury on the first and third counts. The third count of the complaint as amended, as we construe it, is a count charging wanton or willful injury. By its averments it charges in terms, and shows by the facts alleged, wantonness or willfulness. The allegation that the defendant’s servants or agents were cognizant of the surrounding circumstances and conditions existing at the time and place in question, and knew that the injury would likely or probably be inflicted as a proximate result of the conduct on their part complained of is an allegation of consciousness on the part of defendant’s agents or. servants that the injury would likely or probably result from such conduct. There is a sufficient averment of facts necessary to constitute a good count for wanton injury, and it is not rendered bad by the averment being in the alternative as to the charge of wantonness or willfulness. — So. Ry. Co. v. Weatherlow, 153 Ala. 171, 175, 44 South. 1019. The cases of B. R., L. & P. Co. v. Brown, 150 Ala. 327, 43 South. 342, and So. Ry. Co. v. Weatherlow, 153 Ala. 171, 44 South. 1019, cited as authorities to the contrary of the conclusion reached by us, are not only not in the way of our holding, but upon proper analysis will be found to support the conclusion reached as to this count. Charging the injury suffered to the wanton or willful conduct of the defendant, its servants or agents, “as aforesaid,” in the concluding sentence of the third count as amended, does not change the count to one in trespass, charging an actual participation on the part of the defendant in the act complained of, for this is not an independent charge’ but merely ascribes the act to have been done “as aforesaid;” and, referring the allegation to the facts particularized in the fore part of the count, charging the injury to acts of the agents or servants of [594] the defendant, and not considering this allegation as an independent averment, as is the proper rule (B. R., L. & P. Co. v. Parker, 156 Ala. 251, 47 South. 138; B. R., L. & P. Co. v. Weathers, 164 Ala. 23, 51 South. 303; B. R., L. & P. Co. v. Gonzales, 180 Ala., 61 South. 80), the-count is clearly in case, and not subject to the demurrer that trespass and case are joined in the same count. There was evidence before the court having a tendency to support the third count of the complaint, and it was not error to refuse the general charge requested on behalf of the defendant as to this count.- “Reasonable prudence requires that, where the danger is lmoAvn to be great, the care and watchfulness shall be commensurate with it, and it is-a legal truism that what, under some conditions, will amount to -ordinary care Avilb under other conditions, amount to even that reckless disregard of the rights of others Avhich, in law, is wantonness.— Grand Trunk Ry. v. Ives, 144 U. S. 408, 12 Sup. Ct. 679, 36 L. Ed. 485; Birmingham R., L. & P. Co. v. Williams, 158 Ala. 381, 48 South. 93; Matson v. Maupin, 75 Ala. 312.” B. R., L. & P. Co. v. Murphy, 2 Ala. App. 588, 593, 56 South. 817, 819. It Avould appear from the rulings on the pleading and the written charges given at the request of the defendant, as they are shoAvn in the record, that count 3 of the complaint Avas treated on the trial as we have construed it — i. e., as charging a Avanton or willful injury ■ — and Avhile the court in its oral charge, which is set out in the transcript, did not charge on the Avanton or Avillful phase of the case, there Avas evidence before the jury tending to support the allegation of Avantonness, and written instructions' Avere given in charge to the jury in which they were instructed, in effect, that the defendant’s pleas of contributory negligence, as a defense to the cause of action, were limited to that count [595] of the complaint (count No. 1) counting upon simple negligence, and were, by necessary inference, no answer to the allegations of wantonness or willfulness as set up in the third count. Under these conditions, Ave are unable to say that the refusal of the court to give the charge requested by the defendant defining Avantonness (charge No. 6) was error Avithout injury, because that issue was not before the court. We are inclined to think, from a fair interpretation of the record, that it shoAvs snch an issue was before the jury; and, if so, then clearly the defendant had the right to have the jury instructed at its written request as to what constituted Avillful or wanton conduct on its part. ■ That was the only Avay in Avhich it could protect its right to have the jury instructed on this phase of the testimony, and its liability on that account, Avhen the court had failed .to instruct the jury with reference to this matter'. — Williams v. State, 147 Ala. 10, 41 South. 992; Grisham v. State, 147 Ala. 1, 41 South. 997. Charge No. 6 correctly states the law, and, under our vieAV of the case as sliOAvn by the transcript, should have been givens — Montgomery St. Ry. Co. v. Rice, 142 Ala. 674, 38 South. 857; L. & N. R. R. Co. v. Orr, 121 Ala. 489, 26 South. 35; M. & C. R. R. Co. v. Martin, 117 Ala. 367, 23 South. 231. The case having been tried throughout and presented to the jury on the questions of wantonness and simple negligence in Avhich Avillfulness did not enter, it Avas error to refuse charge No. 5, requested in Avriting by the defendant. The negligence or Avanton act counted on and relied upon had reference to the Avire’s having-been left exposed and hanging doAvn in the street subsequent to its having been broken or becoming detached from its fastening, and was not based on an averment [596] or proof of negligence or a wanton act having reference to a failure to properly string or fasten the wire, etc., to prevent its falling down in the street. Under these issues and this proof, charge 5 should have been given. —Mitchell v. Charleston Co., 31 L. R. A. note, pp. 578, 579; Read v. City Ry. Co., 115 Ga. 366, 41 S. E. 629; Smith v. Electric Co., 198 Pa. 19, 47 Atl. 1123; Martin v. Citizens’ Co. (Ky.) 92 S. W. 547; Aument v. Penn. Tel. Co., 28 Pa. Super. Ct. 610. ■ Under the established prevailing rule, there is no merit in the appellee’s contention that, because the proposition contained in this refused written charge (No. 5) requested by appellant was covered by the court’s oral charge to the jury, the failure to give the written instruction, if error, was cured or rendered harmless. The court properly .refused charge No. 3, requested by the appellant. — A. G. S. R. R. Co. v. Robinson (Sup.) 62 South. 813, 815; B. R., L. & P. Co. v. Adkins, 62 South. 367. We have discussed all assignments of error argued and insisted upon by counsel in brief filed. For the reasons pointed out, the judgment appealed from must be reversed. Reversed and remanded.