Opinion
7 Div. 370.
May 6, 1926. Rehearing Denied June 24, 1926.
Appeal from Circuit Court, Talladega County; A. P. Agee, Judge.
J. B. Brown, of Cullman, and Fred G. Koenig, of Birmingham, for appellant.
Defendant's pleas are insufficient. Connors-Weyman Steel Co. v. Kilgore, 189 Ala. 643, 66 So. 609; M. L. W. P. Co. v. Thombs, 204 Ala. 678, 87 So. 205; 20 R. C. L. 107, 110; Montgomery v. Wright, 72 Ala. 411, 47 Am. Rep. 422. The statement in a plea that a thing is "liable" to happen is stating nothing more than that such thing may possibly happen. Terrill v. Walker, 5 Ala. App. 535, 59 So. 775; Beasley v. Linehan Co., 148 Mo. 413, 50 S.W. 87; Williams v. Southern R. Co., 119 N.C. 746, 26 S.E. 32.
Knox, Dixon, Sims Bingham, of Talladega, for appellee.
The word "liable" means exposed to a certain contingency; likely. Webster's New Int. Dict.; 3 Words and. Phrases (2d Ed.) 96; Black's Law Dict. (2d Ed.) 719; Hallum v. Omro, 122 Wis. 337, 99 N.W. 1051; Adams v. Moberly L. P. Co. (Mo.App.) 237 S.W. 162. The use of the word in a plea must be construed with the facts alleged. Where the pleas aver knowledge of the dangerous character of the electricity, etc., they are good, even without the averment that the tools were liable to be charged. Chartier v. Barre Wool Co., 229 Mass. 153, 118 N.E. 263; Dorough v. Ala. Power Co., 200 Ala. 605, 76 So. 963. The oral charge of the court correctly interpreted the pleas. Best Park Co. v. Rollins, 192 Ala. 534, 68 So. 417, Ann. Cas. 1917D, 929; 4 C. J. 929.
The questions presented for review on this submission relate to rulings of the trial court on demurrers to pleas of contributory negligence Nos. 6 and 7 as addressed to count A of the complaint. Plaintiff interposed many grounds of demurrer aptly raising the objections here insisted upon to the sufficiency of these pleas. These demurrers were overruled.
Upon careful study of plea No. 6, we think its natural and obvious meaning is that death resulted from negligence in picking up the bar under conditions known to be dangerous. Other averments of the plea recite the conditions from which the danger arose, with knowledge that these conditions rendered the bar dangerous to the touch.
Emphasis is laid upon the word "liable" in the clause, "as such tools were liable by being placed therein to be charged with electricity." It is true the word "liable," when used alone in defining the degree of hazard, is not sufficient to impute negligence. "An event is liable if its occurrence is within the range of possibility." A. G. S. R. R. Co. v. Smith, 209 Ala. 301, 96 So. 239; Terrill v. Walker, 5 Ala. App. 535, 59 So. 775. In the connection here used the clause relates to the cause or condition, rather than the degree of peril. Dangerous because liable to be charged with electricity is the import of the clause. In neither of the above cases was the word coupled with averments that the act was known to be dangerous, but, on the contrary, with averments denoting no such present known risk as indicated a want of ordinary care. Indeed, the Terrill-Walker Case, supra, relied upon by appellant, involving a street crossing accident, notes the difference in these words:
"* * * If a person, in crossing a street or public highway, sees, in dangerous proximity, an approaching team, automobile, or other vehicle, and that its speed is such as to render the attempt to cross in front of it dangerous, and under such circumstances walks in front of it and thereby suffers injury, such person would be guilty of contributory negligence."
The word "dangerous" is used in that case, and constantly employed in law writing, pleading, and common parlance to denote that degree of peril which, when known, and disregarded, marks such want of care as constitutes negligence.
The plea is construed as a whole and in connection with the complaint. Both show death was the direct result of taking hold of the highly charged bar. Having knowledge that it was dangerous to pick up a metal bar left near a highly charged motor by reason of the bar becoming electrified, yet deceased did pick it up and was killed, clearly shows proximate cause.
Plea No. 7 is somewhat clearer than No. 6. It cannot be fairly construed as imputing knowledge of the danger to the father, rather than the deceased.
The court below charged the jury on these pleas as follows:
"* * * The burden rests upon the defendant to establish his special pleas, and unless he has reasonably satisfied the jury of those pleas, he does not take anything under them. He must reasonably satisfy the jury that this plaintiff's intestate had knowledge that this motor was operated by high-tension electricity, and that it was dangerous to come in contact with it, and that it was dangerous to place iron tools near the house or in the house where the motor was situated, and if they were placed therein to seek to remove them, because they were liable to be charged with a deadly current of electricity, and it is furthermore shown to your reasonable satisfaction that it was negligence on his part to pick them up and try to remove them from that motor house, and that they were liable to be charged with a deadly current of electricity which would make it dangerous for him to touch them and try to remove them, and unless the defendant has reasonably satisfied you of these facts, as I stated just now, he would not be entitled to take anything by reason of his two special pleas."
This instruction correctly interpreted the pleas. The issue went to the jury and was found for defendant.
Finding no error in these rulings presented, the judgment of the court below is affirmed.
Affirmed.
SAYRE, SOMERVILLE, GARDNER, and MILLER, JJ., concur.
ANDERSON, C. J., and THOMAS, J., dissent. They hold plea No. 6 was subject to demurrer. Terrill v. Walker, 5 Ala. App. 535, 59 So. 775, and cases there cited.