Opinion
6 Div. 632.
October 16, 1930. Rehearing Denied November 28, 1930.
Appeal from Circuit Court, Walker County; R. L. Blanton, Judge.
Arthur F. Fite, of Jasper, and Martin, Thompson, Turner McWhorter, of Birmingham, for appellant.
It is the duty of an electric company to use a degree of care commensurate with the danger, and to exercise such reasonable precaution as a man of ordinary care and prudence would exercise in respect to such a dangerous agency, and to employ devices and appliances to that end. Ala. City, G. A. R. Co. v. Appleton, 171 Ala. 324, 54 So. 638, Ann. Cas. 1913A, 1181; Southern Bell T. T. Co. v. McTyer, 137 Ala. 601, 34 So. 1020, 97 Am. St. Rep. 62. Such company is not an insurer. Southern Bell T. T. Co. v. McTyer, supra; Ala. Power Co. v. Farr, 214 Ala. 530, 108 So. 373; Rocap v. Bell Tel. Co., 230 Pa. 597, 79 A. 769, 36 L.R.A. (N.S.) 279; Griffith v. N.E. T. T. Co., 72 Vt. 441, 48 A. 643, 52 L.R.A. 919. Witness Reagan was not shown to be competent to testify as an expert on the matters about which he was interrogated. 11 R. C. L. 574; Birmingham Nat. Bank v. Bradley, 116 Ala. 142, 23 So. 53; Woodstock Iron Works v. Kline, 149 Ala. 391, 43 So. 362. When, after allowing all reasonable presumptions in favor of the correctness of the verdict, the preponderance of the evidence against the verdict is so decided as to involve the conviction that it is wrong and unjust, a new trial should be granted. Birmingham Nat. Bank v. Bradley, supra.
J. M. Pennington and L. D. Gray, both of Jasper, for appellee.
The law imposed upon appellant the duty of due care in selecting, placing, and maintaining, in connection with its wires and instruments, such known and approved appliances as were necessary to guard against such accidents as the killing of plaintiff's intestate. Ala. Power Co. v. Farr, 214 Ala. 530, 108 So. 373; Columbus R. Co. v. Kitchens, 142 Ga. 677, 83 S.E. 529, L.R.A. 1915C, 570; Alabama F. I. Co. v. Bush, 204 Ala. 658, 86 So. 541; Bloom v. Cullman, 197 Ala. 490, 73 So. 85; Athens v. Miller, 190 Ala. 82, 66 So. 702; Davidson v. Ala. Power Co., 203 Ala. 77, 82 So. 91; Fiquett v. Wade E. L. P. Co., 206 Ala. 630, 91 So. 357; Montgomery L. P. Co. v. Thombs, 204 Ala. 678, 87 So. 208; Pearce v. Mountain States T. T. Co., 65 Colo. 91, 173 P. 871, L.R.A. 1918F, 1102; 20 C. J. 341; McAllister v. Pryor, 187 N.C. 832, 123 S.E. 92, 34 A.L.R. 25. The qualification of a witness to give testimony as an expert is a matter addressed to the discretion of the trial court. Alabama S. W. Co. v. Wrenn, 136 Ala. 475, 34 So. 970; White v. State, 133 Ala. 122, 32 So. 140; 6 Michie's Ala. Dig. 505; Gulf City Ins. Co. v. Stevens, 51 Ala. 125; Alabama C. C. I. Co. v. Heald, 168 Ala. 626, 53 So. 166; 11 R. C. L. 574. The fact that the witness testifies that he is not an expert is not controlling as to his qualification. Louisville N. v. Sandlin, 125 Ala. 585, 28 So. 42; Alabama City, G. A. R. Co. v. Bessiere, 197 Ala. 5, 72 So. 327; Hamilton v. Cranford Mer. Co., 201 Ala. 403, 78 So. 404; Malone-McConnell R. E. Co. v. Simpson Audit Co., 197 Ala. 677, 73 So. 369; Sov. Camp v. Hoomes, 219 Ala. 560, 122 So. 686; City Council v. Gilmore, 33 Ala. 116; Bessemer C. I. Co. v. Doak, 152 Ala. 166, 44 So. 627, 12 L.R.A. (N.S.) 389. The verdict of the jury should never be set aside unless palpably erroneous or the preponderance of the evidence so decidedly adverse to the verdict as to convince the court it is wrong and unjust. Cobb v. Malone, 92 Ala. 630, 9 So. 740; Wallace v. Elliott, 220 Ala. 125, 124 So. 286; 20 R. C. L. 277. It is not reversible error to refuse a correct charge, if the same principle of law is fairly and substantially given to the jury in the oral charge or in other written charges. Code 1923, § 9509.
The complaint conforms substantially to the one held not subject to demurrer in the case of Alabama Power Co. v. Farr, 214 Ala. 530, 108 So. 373. It is insisted, however, by appellant's counsel that, while this is true, grounds 12 and 13 of the demurrer in the instant case were not interposed in the Farr Case, supra. The report of the Farr Case does not disclose the grounds of demurrer there invoked, but, assuming that grounds 12 and 13 in the case at bar were not interposed, we are of the opinion, and so hold, that the present complaint is not subject to same. The complaint does not charge the defendant with being an insurer, and did not have to negative the fact that the defendant did not install wires and appliances in general use by well-regulated concerns similarly situated. If such was the case, this was an answer or defensive matter to the charge of a failure to exercise due care, and was not a proper or necessary charge in the complaint.
While the witness Reagan may not have regarded himself as an electrical expert in a general way, yet his evidence showed considerable experience and familiarity with the subject-matter involved, and we cannot put the trial court in error in permitting him to testify along the lines that he did. "To entitle a witness to answer as an expert, it is true, he must in the opinion of the court, have special acquaintance with the immediate line of inquiry; yet he need not be thoroughly acquainted with the differentia, of the specific specialty under consideration. A general knowledge of the department to which a specialty belongs would seem to be sufficient." 1 Wharton Evidence (2d Ed.) page 386; Washington v. Cole, 6 Ala. 212; Gulf City Co. v. Stephens, 51 Ala. 121; Parrish v. State, 139 Ala. 16, 36 So. 1012; Alabama Consol. Coal Iron Co. v. Heald, 168 Ala. 626, 53 So. 162.
There was no error in sustaining the plaintiff's objection to the question embraced in the fifteenth assignment of error. It exceeded the range of expert opinion evidence as to the equipment and condition of the wires, and invaded the province of the jury and called upon the witness to construe and give the effect of the National Electrical Code. Nashville, C. St. L. Ry. v. Yarbrough, 194 Ala. 162, 69 So. 582; Doby v. Layton, 210 Ala. 303, 98 So. 9.
The trial court did not commit reversible error in refusing the defendant's requested charges 7, 11, and 12. If not faulty, they were substantially covered by given charges 6, 8, 9, and 10.
Charges 21 and 22, refused the defendant, if not faulty, were sufficiently covered both by the oral charge of the court and the defendant's given charges.
The appellant argues ably and earnestly for a reversal of this case for the refusal of the motion for a new trial because the verdict was contrary to the weight of the evidence. The evidence has been read and carefully considered, and we do not feel justified in holding that the verdict was so contrary to the great weight of the evidence as to put the trial court in error for refusing the new trial. Cobb v. Malone, 92 Ala. 630, 9 So. 738.
The judgment of the circuit court is affirmed.
Affirmed.
SAYRE, THOMAS, and BROWN, JJ., concur.