Opinion
7 Div. 985.
April 10, 1919. Rehearing Denied May 22, 1919.
Appeal from Circuit Court, Shelby County; Hugh D. Merrill, Judge.
Riddle Ellis, of Columbiana, for appellants.
Thomas W. Martin and Perry W. Turner, both of Montgomery, for appellee.
The gravamen of count A was the negligent burning of the plaintiffs' house, etc., by causing or allowing a current of electricity to come in contact with the telephone wire and transmitted into the telephone house and switchboard. This count is broad enough to cover a negligent overcharge of the wire, or a failure to use means or appliances to prevent a contact or injurious results. We also think there was enough evidence to submit this count to the jury without resort to the doctrine of res ipsa loquitur. The proof was sufficient to create a reasonable inference for the jury that the burning was caused as set out in count A, and amounted to more than a mere conjecture or speculation. True, there were other connections with the switchboard, but the plaintiffs' proof tended to show experiments, tests, and an unusual charging of the wire by this defendant on the night of the fire. C. T. Davidson said, among other things:
That up to the time he left the night of the fire "there was considerable fuss on the wires at times. By fuss I mean roaring and humming. There was a roaring and fussing all the evening. * * * I know what produced that fuss. It was a current of electricity on the line; hot wire we call it. By 'hot wire' I mean that it was charged by electricity. On the evening referred to, that is, the evening just before the exchange was burned, I heard people talking over the telephone from lock 12. I heard Mr. Benziger talking over this telephone line. He was in the employment of the Alabama Power Company. * * * I heard him say, 'We will put her on and hold her one minute.' * * * When this current was put on, it would ground us out so that it would throw the numbers on the board. * * * It would have the same effect as lightning. * * * It roared like thunder almost. * * * They would then do something down at the dam * * * they said their transformers were giving them trouble. * * * They would again put the current on for maybe two minutes. Then the telephone conditions would be as bad or worse than it was before, and every number on the board would fall. * * * I left at 9 o'clock that night, and this turning on and off the current was still going on. * * * Some of them called it the 'hazard test,' and some of them called it the 'rigid test.' "
R. P. Davidson, who succeeded this witness, testified that there was something unusual going on after he got there and until he went to sleep. It is true this evidence was contradicted by the defendant's proof, which may have been more scientific and reliable, but it was nevertheless a question for the jury as to whether or not the fire was caused as charged in count A of the complaint. We have not discussed counts 1 and 2, as count A is broad enough to cover the negligence charged in each of said counts, respectively.
We also think that the plaintiffs got the full benefit of count 3 under count A, thereby rendering the sustaining of the demurrer to said count 3 harmless, whether it was or was not subject to said demurrer.
It is no doubt true that the plaintiffs would be precluded from a recovery by the contributory negligence of the two Davidsons, or either of them, who were conscious of the tests and experiments, if they were aware of consequences liable to result therefrom and could have adopted preventive measures by shutting off or disconnecting the dangerous current, or otherwise. But this, too, was a question for the jury.
The plaintiffs should have been permitted to show that at the time of the fire there existed certain appliances that would prevent electricity from getting off the wire and burning up buildings. Whether or not the court's refusal to permit these questions was subsequently cured by the offer of the court the next day to let counsel ask them we need not determine, as the case must be reversed for other reasons.
Proof of changes and improvements in the ways or works of the defendant after the injury or the alleged cause of action arose is not admissible. Nashville Chattanooga R. R. v. Ragan, 167 Ala. 277, 52 So. 522. The trial court did not err in not letting the plaintiffs show that since the fire in question the defendant had put in certain appliances to prevent buildings from burning up, in a new building it erected at Helena.
For the error in giving the general charge for the defendant, the judgment of the circuit court is reversed, and the cause is remanded.
Reversed and remanded.
MAYFIELD, SOMERVILLE, and THOMAS, JJ., concur.