Opinion
SC 500.
June 5, 1975. Rehearing Denied July 3, 1975.
Appeal from the Circuit Court, Franklin County, Kennedy Williams, J.
Taylor Taylor, Russellville, for appellants.
Wantonness may arise from knowledge that persons, though not seen, are likely to be in positions of danger, and with conscious disregard of known condition of danger. Blount Bros. Construction Co. v. Rose, 274 Ala. 429, 149 So.2d 821; Godfrey v. Vinson, 215 Ala. 166, 110 So. 13. The notice of defect or danger which is necessary in order to impose liability for negligence need not be actual, for negligently remaining ignorant of that which it is one's duty to know has the same effect as actual knowledge and in such case one has implied or constructive notice. Railway Express Co., et al. v. Real, 253 Ala. 489, 45 So.2d 306.
Huie, Fernambucq, Stewart Smith, Birmingham and Bedford Bedford, Russellville, for appellees.
Before a defendant can be said to be guilty of wanton conduct, the evidence must show that the defendant, with reckless indifference to consequences, consciously and intentionally did some wrongful act or omitted some duty which produced injury to the plaintiff. Taylor v. Thompson, 271 Ala. 18, 182 So.2d 277; Pruett v. Marshall, 283 F.2d 436 (Fifth Circuit, 1960).
William T. Canida and Frances L. Canida sued U.S. Reduction Company, claiming that the company negligently and wantonly discharged a large quantity of chlorine gas which damaged their property in the sum of $100,000.
The trial court directed a verdict for the company on the wanton count and the jury found for the defendant company on the negligence count. The Canidas' motion for a new trial was overruled. They appealed.
The Canidas claim that the trial court committed reversible error in granting the defendant company's request for the affirmative charge as to the wanton count in their complaint. We agree. We have examined the evidence and are of the opinion that there was at least a scintilla of evidence to support plaintiff's charge that the defendant company was guilty of willful or wanton misconduct. This court has held that where it was error to give the affirmative charge against a plaintiff on counts charging willful or wanton misconduct under the evidence, such error was not cured by the verdict of the jury finding against the plaintiff on the issue of simple negligence submitted to them by the court. McNeil v. Munson S.S. Lines, 184 Ala. 420, 63 So. 992 (1913); Buchanan v. Vaughn, 260 Ala. 482, 71 So.2d 56 (1956). A synopsis of the Alabama rule is stated in Buchanan v. Vaughn, as follows:
"The fact that the defendant was found by the jury to be not guilty of initial negligence would not preclude a finding by the jury that she was guilty of wanton conduct. McNeil v. Munson S.S. Lines, 184 Ala. 420, 63 So. 992; Coleman v. Hamilton Storage Co., 235 Ala. 553, 180 So. 553. Although evidence of subsequent negligence would have been admissible under the simple negligence counts, no such evidence was introduced and the issue of subsequent negligence was not submitted to the jury. Hence our holding in Kendrick v. Birmingham Southern R. Co., 254 Ala. 313, 48 So.2d 320, has no application to the instant case."
The judgment of the trial court is due to be reversed.
Reversed and remanded.
MERRILL, JONES, ALMON and SHORES, JJ., concur.