
    Postal Telegraph Cable Co. v. Jones.
    
      Action against Telegraph Company to recover Damages for Personal Injuries.
    
    1. Action against telegraph company for personal injuries; sufficiency of ■complaint. — In an action against a telegraph company by one who was traveling along the public highway, to recover damages for personal injuries received as the result of a wire used by the defendant having fallen across the public road, where the complaint alleges that the team which was attached to the vehicle in which he was riding, came in contact with said wire, and by reason thereof became unmanageable and the plaintiff was thrown from the wagon and fell upon said wire and received the injuries complained of, and it was averred that the defendant owned and operated said telegraph wire which was heavily charged with electricity “and it became and was the duty of the defendant to use due care to have and keep said wire high up from said road, yet, notwithstanding said duty defendant negligently caused or allowed said wire to be or remain on, or such a short distance above, said public highway that the public traveling said highway were liable to be injured thereby,” sufficiently charges a cause of action and is not subject to demurrer upon that ground, or upon the further ground that it fails to show the duty on the part of the defendant to keep its wire out of the way of travelers along the public road.
    2. Pleading and practice; when demurrer to special pleas properly sustained. — Special pleas which set up matters simply in denial of the cause of action, as contained in the complaint, and interpose no ground of defense which can not be set up under the plea of the general issue, are subject to demurrer.
    3. Action against telegraph company; tohen negligence a question for the jury. — In an action by one who was traveling along a public road against a telegraph company, to recover for personal injuries' alleged to have been caused by reason of the defendant’s negligence in allowing a wire charged with electricity to be or remain on or a short distance above the road, whereby the traveling public along said road were liable to be injured, and the defendant by special plea sets up that it exercised reasonable care to prevent its wires from becoming detached from its poles, and that it did not know and by the exercise of reasonable care could not have known that the wires had become detached from the pole, until after'the injury to the plaintiff, and where the evidence for the plaintiff tends to show that at the point where the injury was alleged to have been caused the wire owned and operated by the defendant had become disengaged from the pole to which it was attached, by reason of the cross pole being rotten, and that the wire had been detached for two days or more before the injury complained of was inflicted, it is a question for the jury whether due care alleged had been proved, or whether due care had been exercised to discover and remedy the defective condition of the wire; and, therefore, the general affirmative charge requested by the defndant is properly refused.
    4. Same; same; charge to the jury. — In such a case, a charge is properly refused which instructs the jury as follows: “That although the jury may find from the evidence that the cross arm which it appears from the evidence was detached from the pole at the point of defendant’s line where the alleged injury occurred was rotten, or partially rotten, yet, in this case no recovery can be had because of such alleged rotten or partially rotten cross arm.”
    5. Action for negligence; charge of court as to failure to call in physician. — In an action to recover damages for personal injuries alleged to have been caused by the negligence of the defendant, a charge is erroneous and properly refused which instructs the jury “that if they find from the evidence that no doctor was employed by the plaintiff to treat his alleged injuries, the jury may look to this fact, if found from the evidence to be a fact, as a circumstance tending to show that plaintiff was not seriously hurt at the time and place named in the complaint and evidence.”
    6. Action to recover for personal injuries; admissibility of evidence. In an action to recover damages for personal injuries, where there was evidence tending to show that the plaintiff continued to suffer more or less from the injury ever since it was received, it is competent to ask a witness who was shown to have been with the plaintiff, as to whether or not he had heard the plaintiff give expressions .of pain or suffering since he received the injuries complained of.
    7. Action against telegraph company; inconsistency of court in rulings upon charges requested by defendant. — In an action by one who was traveling along a public road against a telegraph company, to recover for personal inquires alleged, to have been caused by reason of the defendant’s negligence in allowing a wire charged with electricity to be or remain on or a short distance above the road, whereby the traveling public along said road were liable to be injured, there iss no inconsistency on the part of the trial court in giving a charge at the request of the defendant which left the jury free to find that the wires, poles and cross arms of defendant’s line were not in safe and good condition when they were last inspected, and upon so finding to return a verdict for the plaintiff, and refusing at the request of the defendant the general affirmative charge in its behalf.
    8. Trial and its incidents; new trial can not be granted because court gave charge at the request of movant. — Where in the trial of a cause, there is judgment rendered for the plaintiff, it constitutes no ground for the granting of a new trial, that the court at the request of the defendant gave a charge in its behalf.
    Appeal from tlie Circuit Court of Jefferson.
    Tried before tlie Hon. A. A. Coleman.
    This was an action brought by the appellee, C. A. Jones, against the Postal Telegraph Cable Company to recover damages for personal injuries received by him while travelling along a public highway, by the side of which the -defendant had its wires strung.
    The complaint as amended contained but one count. In this count the plaintiff alleged that on November 5, 1898, the defendant owned and -operated a line of telegraph wire which was attached to poles along or near the public highway in Jefferson -county; that said line of telegraph wire was heavily charged with electricity, “and it became and was the duty o-f defendant to use due care to have an-cl keep said wire high up from said road, yet notwithstanding said duty defendant negligently caused or all-owed said wire to be -or remain on, or such a short distance above, said p-ubiic highway, that the public traveling said highway were liable to be injured thereby.” It was then averred that on the day above named the plaintiff was traveling along ¡said highway in a wagon to- which a team was attached, and that said team came in contact with the said wire and as a proximate consequence thereof the team became unmanageable and plaintiff was thrown from the wagon, and came in contact with, the wire charged with electricity, and sustained the damages complained of. The plaintiff claimed |500 as damages.
    To this complaint the defendant demurred upon the f ollowing grounds: 1. It fails to aver any duty that the defendant owed to the pláintiff in the manner of maintaining its wires. 2. That the complaint fails to show7 that the defendant did not discharge its duity to* the plaintiff. 3. The complaint fails to ■show7 with reasonable certainty in what the alleged negligence of the defendant consisted. 4. It fails to aver what, if any, negligence on ithe part of the defendant contributed proxi-mately to plaintiff’s alleged injuries. This demurrer was overruled. Thereupon the plaintiff filed the pleas of the general issue 'and the following special pleas: “4. For further answrer to the complaint the defendant says and avers that the plaintiff ought not [to have and recover any sum of this defendant in this cause because, as it avers, neither the defendant nor the employees of defendant, whose duty it was to see that iits wires at the point named in the complaint were properly attached to the poles, knew that said wires w7ere detached from 'said poles in the manner stated in the complaint until after the alleged injury to paintiff, when, as defendant aver®, the defendant within a reasonable time thereafter caused said wares to be properly attached to said poles.”
    “5. For answer to ithe complaint the defendant says and avers that the plaintiff ought not to* have and recover any sum of this defendant in this cause because, as it avers, neither the defendant nor the employees of the defendant, whose duty it was to see that its wares at the point named in this complaint were properly attached to the poles, knew7, or by the exercise of reasonable care would have known, that ©aid wires were detached from said poles in the manner stated in the complaint until after the alleged injury to plaintiff, when, as defendant avers, the defendant wdthin a reasonable lime thereafter, caused said wares to be properly attached to said poles.”
    “6. For further plea in this behalf the defendant says and avers that plaintiff ought not to have and recover of this defendant any snm because it says and avers that the plaintiff contributed to his own injury in this, that knowing the wire referred to in the complaint was alongside of the alleged road, he, without due care, drove or alloAved to be driven the alleged team against said wire, thereby contributing to his alleged injuries.”
    
      “7. For further ansAver to the complaint the defendant says and avers ithat the plaintiff ought not to have and recover any sum of this defendant in this cause because, as it avers, that the defendant exercised reasonable care to prevent its said Avires from becoming detached from its said poles, and that neither the defendant or the employees of the defendant, Avhose duty it-was to see that its wires at the point named in this complaint wrere properly attached to the poles, kneiv, or by the exercise of reasonable care would, have known, that said wires were detached from said poles in the manner stated in the complaint until after the alleged injury to plaintiff, AAiien, as defendant avers, the defendant within a reasonable time thereafter caused said AAires to be properly attached to said poles.”
    To pleas 4 and 5 the plaintiff demurred upon the following grounds: 1. Said pleas do not interpose any defense wiiich could not be set up under the plea of the general issue; and the facts averred in said pleas can be given in evidence under the general issue. 2. Said pleas fail to negative the negligence of the defendant in allowing the wire to be along or near the public road. The demurrer to each of these pleas Avas sustained. The judgment entry recites that there Avas a motion made to strike the 7th plea from the file. The grounds of this motion are not shown. Said motion, however, was overruled.
    On the trial of the cause upon issue joined upon the remaining pleas, it was shown that on the night of November 5, 1898, the plaintiff in company Avith two other men was riding along a public road in Jefferson county in á Avagon draAvn by a horse and a mule; that Avhen they were about thirteen miles from the city of Birmingham the team came in contact with a wire which was swinging about two feet from the ground in the middle of said road; tliat this wire was charged with electricity and the shock therefrom caused the team to rear and charge; that itlie wagon was broken, the occupants thereof thrown out, and the plaintiff fell on the wire and the body of the wagon fell upon him; that this wire was owned, operated and maintained by the defendant.
    The evidence for the plaintiff tended to show that on the day before, while plaintiff and his companions were going along the same road in the direction of Birmingham the defendant’s wire at the point on the road ivhere the injury had occurred, had dropped 'from the cross arm of the post from which it was suspended, and was propped out of the road with a forked stick; that the cross arm by which the said wire was suspended from the post, was rotten and broken.
    The evidence for the plaintiff further tended to show that the plaintiff’s injuries were permanent in their character, and that [the plaintiff had suffered a great deal and was rendered less able to work.
    During the examination of one Lawler, who ivas with the plaintiff at the time of the accident, he ivas asked the following question: “Have you or not heard Jones, the plaintiff, give expressions of pain or suffering since that night?” To this question the defendant objected. The court overruled the objection, and the defendant duly excepted.
    The defendant, as a witness in litó own behalf, testified in detail to the injuries sustained by him, and further testified itbat he did not have a doctor to attend him.
    The evidence for the defendant tended to show that the line along which the wire was running was maintained in good condition, and was of such material as was in use in well regulated telegraph lines; that said line had been inspected by a competent lineman on October 14, 1898, just a short time before the accident, and that it was then found to be in good condition.
    One of the witnesses for the defendant, and who testified that he was the wire chief of the defendant, whose place of business was in Birmingham, further testified that by a system used by the defendant the wire chief could tell as soon as a wire was obstructed, and was enabled by the use of an instrument called a galrnanometer to approximate the distance from the office- in Birmingham to the place of obstruction; that up to the time this witness went- off duty at 4 o’clock November 5, 1898, nothing had interrupted the wire along the line where the accident occurred. Another witness, who testified ¡that he was the night wire chief, testified that- about 9 o’clock on the night of November 5, 1898, the instrument referred to indicated that there was an obstruction along the road on which the plaintiff Aims injured, about thirteen miles from Birmingham. The evidence for the defendant further tended to shoAV that the next morning a line man aatis sent to the place in question and found that the Avire had dropped from the post, but was propped up from the road by a forked stick. Two of the witnesses introduced for the -defendant testified that the -cross arm on Avlfich the Avire Avas suspended from the post AAnas not rotten or broken.
    The eAddence for the defendant further tended to show that the current of electricity along the vire aaIúcIi was alleged to have caused the injury complained of was not of sufficient force to be dangerous.
    The defendant requested the court to give to the jury the foll-oving Avritten -charges, and separately excepted to the court's refusal to give each of them as asked: (1.) “The. court charges the jury that, if the jury -believe the eAddence introduced in behalf of the defendant, they must find for the Postal Telegraph Cable -Co.” (2.) “The court charges the jury that if they belieAre the evidence, they must find a verdict in favor of the defendant-, the Postal Telegraph Cable Co.” (3.) “The court charges the jury that although the jury may find from the eAddence that the cross- arm wifi-ch it appears from the evidence was detached from the pole at the point -of defendant’s line where the alleged injury occurred was rotten, or partially rotten, yet, in this case, no recovery -can be had because of such alleged rotten cross arm.” (4.) “The court .charges the jury that if they find from the eAddence that no doctor AAr-as employed by the plaintiff to -treat- his alleged injuries, the jury may look to this fact, if found from the eAddence to be a fact, as a circumstance tending to show that plaintiff ivas not seriously hurt ait the time and place named in the complaint and evidence.”
    The court, at the request of the defendant, gave to the jury, ¡among others, the following written charge: (10.) “The court charges the jury that if they believe from Hie evidence that it is the custom of well regulated telegraph companies to inspect the lines of such companies once a month; and if the jury further find from the evidence that ¡the line which included the point where the alleged injury occurred had been inspected by a competent man on the 13th of October, 1898, and if the jury further find .from the evidence that at the time of said inspection, provided ¡they find there Avas such inspection by such man, the wires, poles and cross arms were in good and saf e condition and ¡such ¡as were and are used by well regulated telegraph companies and if the jury further find that the defendant, the telegraph company, did not know the line was down until or aifjter the alleged injury to plaintiff and that it Avas repaired the next morning, and if the jury further find from the evidence that the defendant used the ordinary and usual and reasonable care of well regulated telegraph companies in ascertaining whether the line in question Avas doAvn, then the verdict should be for the defendant, the Postal Telegraph Company.”
    There were verdict and judgment in favor of the plaintiff, assessing his damages at $250. After the rendition of ithis judgment the defendant moved the court to set aside the verdict and judgment and grant a neAV trial upon the ground that the court erred in refusing to give the several charges requested by the defendant; because the verdict was contrary to the law and the evidence; because the court erred in its ruling upon the pleadings, and upon the following ground: “8. The court by giving to the jury charge No. 10 at the request of defendant held on the evidence that the plaintiff was not entitled to recover yet refused to give charge No. 2, which respective actions of the court operated to the injury of the defendant on the trial and Avill operate to injury of the defendant on appeal.” This motion was overruled, and the defendant duly excepted. The defendant appeals, and assigns as error the several rulings of the trial court to which exceptions were reserved.
    J. J. Altman, for appellant.
    Bowman & Harsh, contra.
    
    The court did not err in its rulings upon the pleadings. — L. & N. R. R. Go. v. Mar bury L. Go., 125 Ala. 237;. L. & N. R. R. Go. v. Jones, 83 Ala. 376; Laughran v. Brewer, 113 Ala. 515.
    Demurrers to the fourth and fifth pleas are plainly well taken. These (two pleas 'are but the efforts to malee up a defense out of some but not all of the materials in the general issue. In other words, they negative only a paid of the negligence alleged. For duty of defendant in reference to wires across highways, see Neivarh Elec. L. & P. Go. v. Rudely, 5 Am. Neg. Rep. 402; Lloyd v. Gity & Suburban Ry., 7 Am. Neg. Rep. 591; Keasbey on Electric Wires (2d ed.), §§ 227 and 231; Diclcey v. Maine Tel Go., 46 Me. 483; Thomas v. Western Union Tel. Go., 100 Mass. 156; Penn. Telephone Go. v. Varman, 15 Atl. Rep. 624; Nichols v. Gity of Minneapolis et al., 33 Minn. 430; Ghatta. Elec. Go. v. Mingle, 56 S. W. Rep. 23.
    The charge requested by the defendant was properly refused. If a sound cross arm is one of the appliances used by defendant to hold its wires out of the highway, then having a rotten and ineffective cross arm was one way of causing or allowing the wire to be in the highway and is fully covered by the complaint. The quo modo of defendant’s negligence is not necessary to be stated. — L. c6 N. R. R. Go. v. Jones, 83 Ala. 376; Rowe v. N. Y. & N. J. Tel. Go., 9 Am. Neg. Rep. 528; Leach et al. v. Bush et al., 57 Ala. 154; Mary Lee Goal <& Ry. Go. v. Ghambliss, 92 Ala. 172; L. & N. R. R. Go. v. Haiokins, 92 Aa. 243; L. & N. R. R. Go. v. Mother shed, 12 So. Rep. 714.
   McCLELLAN, C. J.

There is no merit in the contention for appellant that the complaint did' not aver the negligence counted on with sufficient particularity. The rule is that the duty to exercise care being shown, the failure to perform that duty, the negligence causing the injuries complained of may be well averred in the most general terms, little if at all short of the mere conclusions of the pleader; and this upon the entirely sufficient consideration, among others, that if the defendant has been guilty of negligence lie knows as well as or better than the plaintiff can in what that, negligence consisted. — Louisville & Nashville Railroad Co. v. Jones, 83 Ala. 376; Louisville & Nashville Railroad Co. v. Marbury Lumber Co., 125 Ala. 237; Mobile & Ohio Railroad Co. v. George, 94 Ala. 214; Bessemer Land & Imp’t Co. v. Campbell, 121 Ala. 50; Montgomery Street Railroad Co. v. Armstrong, 123 Ala. 233; Ga. Pac. R’y Co. v. Davis, 92 Ala. 307; Stanton v. Louisville & Nashville Railroad Co., 91 Ala. 384; Ensley Railroad Co. v. Chewning, 93 Ala. 26; Laughran v. Brewer, 113 Ala. 509; Louisville & Nashville Railroad Co. v. Orr, 121 Ala. 489; Memphis & Charleston Railroad Co. v. Martin, 117 Ala. 367, and many other cases.

The 'Objection taken by demurrer that the complaint does not sufficiently show a duty on the pant of the defendant to keep its wires out of the way of travelers along public roads is too palpably unfounded to require discussion. The complaint does aver such duty, and the courts take cognizance of it even wi'tliout averment. In this respect the case is analogous to that of Louisville & Nashville Railroad Co. v. Marbury Lumber Co., supra, in which the complaint averred that the defendant negligently set fire to and burned plaintiff’s cotton. We know in this case that it was defendant’s duty to exercise care to avoid obstructing public roads, as we knew in that it was'defendant’s 'duty to exercise care ito avoid burning plaintiff’s cotton.

All the facts averred in pleas 4, 5 and 7 were provable under’' the general issue: The averments of these pleas were mere denials of negligence; and on this ground the appellant can take nothing by reason of the •court having sustained the demurrer to those numbered 4 and 5. Both those and plea 7 might well have been stricken on [the ground referred to.

Plea 7 was allowed to remain in the case, however, and appellant’s counsel insist that it .was proved on the trial. We do not find that it was proved. The plea alleges that the defendant used due care to prevent ifs wires from becoming detached from its poles. The evidence fur plaintiff ivas that the wires at the point they fell and obstructed the highway had been attached to the pole from which they became disengaged, by means of a rotten cross bar, etc. On this evidence it was clearly a question for the jury ivhether the due care alleged had been proved. The plea also alleges that the defendant did not know and by the exercise of reasonable care could not have known that the wires had become detached from the pole until after the injury to plaintiff, but the evidence for the plaintiff showed that ithe wires had been detached for more than two days before the injury was inflicted, and it ivas open to the jury to say upon this evidence that due care had not been exercised to discover and remedy the defective condition of the wires. Something is said in the case about an instrument in use in defendant’s offices by the use of Avhich trouble with the wires may be detected and located. We do not understand that this instrument will indicate the detachment of a wire from a pole and its consequent suspension in ithe Avay of travelers across a public road, or will indicate anything at all so long as the current of electricity carried by the Avire is not obstructed. It indicated nothing in this case until the current Avas diverted from the wire in consequence of plaintiff’s wagon and team and person coming iu contact Avith it. The evidence about this instrument cuts no figure in respect of the injury whether defendant was negligent in allowing the wires ito become detached from the pole and sag into the high way for two or three days.

What Ave haA-e said in respect of the complaint applies to the third charge requested by defendant. On the evidence the jury Avere fully Avarranited in finding that the cross arm was rotten, that it was so rotten, or, being rotten, was used by defendant in consequence of its, defendant’s, negligence, and that such negligence in respect of ¡the cross arm was the efficient cause of plaintiff’s injury, entitling him to a verdict.

There being not only the eAÚdence as to the rottenness of the cross arm from Avhich damnifying negligence was inferable by the jury; but also evidence that the wires bad been down (two or more days before tbe injury from which it was open to tbe jury to infer such negligence, and there being also evidence of the alleged injury, it requires no argument to demonstrate that the affirmative charge -requested by defendant was properly refused.

lit becomes necessary to remark only, because the contrary is insisted upon, that a -charge to the jury “that if they find from the evidence that no doctor was employed by the plaintiff to treat his alleged injuries, the jury may look to thi-s fact, if found from the evidence to be a fact, as a circumstance tending to show that the plaintiff was not seriously hurt,” is such a singling out and giving undue prominence to a part of the evidence as is unwarranted and has been over and over again condemned by this court.

The evidence tended to sh-owr that the plaintiff had continued to suffer more or less from the injury ever since it was received. The question to the witness Lawler : “Have you not heard the plaintiff give expressions of pain and suffering since that night,” covered the time under inquiry, -an'd was not objectionable.

There was no inconsistency on the part of the circuit court in giving charge 10 for -defendant and refusing the general charge asked by defendant. The jury were left -free by this 10th charge to find that the wires, poles and cross arms -of defendant’s line were not in good and safe 'condition when Worthy last inspected the line, and upon that to return a verdict for the plaintiff, while all this would have been denied them by the affirmative charge. This matter is made a ground of the motion for a new trial, and is the only ground of that motion -specially insisted upon by counsel. The contention in this connection is not that the court should have granted a new trial for having erroneously refused to give the general charge for defendant — that is another ground of the motion — -but that a new trial should be granted to defendant because the court gave charge 10 ait its request. We confess we do not see how the defendant can ask a new trial on t-he ground that the court in a specified instance ruled at his request in his favor.

We do not understand that any of the other grounds of the motion for a new ¡trial, except such as we have above considered apart from that motion, are insisted on. Whether so or not, they are without merit.

Affirmed.  