Birmingham Ry. L. & P. Co. v. Jackson

GARDNER, J.— (1) The first count relies for recovery upon simple negligence on the part of defendant, by its servants or agents while acting in the line and scope of their employment, in leaving a live wire exposed on one of the public streets of the city of Birmingham, with which wire plaintiff’s intestate came into contact and was killed. The count was not subject to the demurrer interposed.—Postal T. C. Co. v. Jones, 133 Ala. 217, 32 South. 500; Sheffield v. Morton, 161 Ala. 153, 49 South. 772; B. R., L. & P. Co. v. Cockrum, 179 Ala. 372, 60 South. 304. Count 3, as amended, was fully' treated by the Court of Appeals on former appeal.—B. R., L. & P. Co. v. Jackson, 9 Ala. App. 588, 63 South. 782. We approve that court’s finding as to [381] the sufficiency of said count. Demurrer to the count as aménded was properly overruled. (2) Count 3 as amended charges wanton or willful injury, and there was no error in sustaining the demurrer to the pleas of contributory negligence in so far as they attempted to set up such defense as against this count. (3) Numerous exceptions were reserved to portions of the oral charge of the court, some of which will be found set out in the above statement of the case. The argument on the first exception as to simple negligence is based on the failure of the definition to show that the duty breached must have been one owing to the party injured, citing, among other authorities, So. Ry. Co. v. Drake, 166 Ala. 545, 51 South. 996. The evidence is without dispute that on the night previous to the day on which the intestate was killed there was an unusual storm in the city of Birmingham, many houses and trees being blown down, and that a live wire was seen hanging from one of defendant’s electric light poles on the moring following the storm, with which wire the intestate came into contact between the hours of 10:30 and 12 a. m., at the intersection of two public streets in the city of Birmingham. If it be conceded that, according to the strict rule, the definition of simple negligence, to which exception was reserved, was incomplete for the reason assigned in the argument, yet it is clear from the record and from the entire oral charge that the jury.fully understood that the breach of duty must have been one in this particular case which was owing to the intestate as a citizen entitled to the use of the public streets. (4) The objection to the definition as to wantonness, constituting exception number 2, is its failure to charge a knowledge of the situation. This objection is met, however, by the concluding part of the sentence of which the exception forms a part, as follows: “A person does it * * ■ * with that absolue disregard of the consequences of the act after he has had knowledge of the conditions.” (5) We see no merit in the exception numbered 3 to the oral charge. That portion of the oral charge covered by this exception, as set out in the statement of the case, was merely a part of the sentence wherein the court had instructed -the jury as to the company’s duty to make inquiries over its lines after such a storm as would likely result in. damage to its wires. [382] (6) The sixteenth assignment of error is based upon the exception to oral charge numbered 4 in the above statement of the case. The exception is to a brief statement or conclusion, fragmentary and incomplete, showing on its face that it was dependent upon a predicate laid by the court, and not included in the exception. The proposition of the exception was therefore indefinite and incomplete, and presents no matter for review. “A party excepting must make his exceptions so specific that the matter relied on as error will be apparent to this adversary and to the primary court.”—Kirby v. State, 151 Ala. 66, 44 South. 38; Irvin v. State, 50 Ala. 181. (7) One of the purposes of the rule, as stated in Irvin v. State, is that the trial court, having its attention specifically directed to the alleged erroneous matter, might satisfy itself as to the error assigned, and, if so convinced, voluntarily correct the same. The reasons for the rule are discussed in the Irvin Case, and, in our opinion, are fully applicable to the exception which constitutes the sixteenth assignment of error in this case. We deem it unnecessary to separately treat other exceptions to the oral charge. We find in them nothing calling for reversal of the cause. It is clear that the exception to the oral charge of the court as a whole is without merit.—Lacey v. State, 154 Ala. 69, 45 South. 680. (8) There was evidence for plaintiff tending to show that the intestate came in contact with the live wire while walking along the street in the customary manner, and evidence for the defendant to the effect that intestate voluntarily and without cause went to and took hold of the live wire. The issue as to contributory negligence was properly submitted for the jury’s determination. It was determined on the former appeal, with which conclusion we agree, that there was evidence tending to support count 3 as amended. The affirmative charge was therefore properly refused as to counts 1 and 3.—B. R., L. & P. Co. v. Jackson, supra. We are not persuaded that we should disturb the action of the court in overruling the motion for a new trial. (9) The written charge given at the request of plaintiff merely stated,_ in substance, that the written charges given by the court were not intended to change the oral charge, but that the entire charge of the court, oral and written, should be taken [383] and construed together as constituting the law of the case. There - was no error in the giving of this charge. .We find no reversible error in the record. The judgment will be aifirmed. Affirmed. Anderson, C. J., and McClellan and Sayre, JJ., concur.