Opinion
6 Div. 437.
November 15, 1917.
Appeal from City Court of Birmingham; John H. Miller, Judge.
Harsh, Harsh, Harsh, of Birmingham, for appellant. Percy, Benners Burr, of Birmingham, for appellee.
On the undisputed evidence in this case — all of it coming from the mouths of witnesses introduced by the plaintiff — we think it must be concluded as a matter of law that the intestate was guilty of such contributory negligence in the proximate causation of his injury as to prevent any recovery for the alleged negligence of the defendant company; conceding, without deciding, that defendant was guilty of negligence in maintaining its high power wires in such proximity to the inclined trestle on which intestate was working.
The facts present every element necessary to the legal conclusion stated, and do not permit of any rational inference to the contrary. L. N. R. R. Co. v. Hall, 87 Ala. 708, 6 So. 277, 4 L.R.A. 710, 13 Am. St. Rep. 84; Wood v. R. D. R. R. Co., 100 Ala. 660, 13 So. 552; Sloss I. S. Co. v. Knowles, 129 Ala. 410, 30 So. 584; Alteriac v. West Pratt Coal Co., 161 Ala. 435, 49 So. 867; Kilby Co. v. Jackson, 175 Ala. 125, 57 So. 691.
Plaintiff relies strongly on the case of Card v. Wenatchee, etc., Co., 77 Wn. 564, 137 P. 1048. There a farmer handling a metal pipe accidentally brought it in contact with a power wire running 17 feet above the highway near his land. On the question of contributory negligence the court said:
"It is finally argued that the deceased was negligent in allowing the pipe in his hands to come in contact with the wire. This, we think, was also a question for the jury, and could not be determined as a matter of law, in view of the facts we have noticed; especially in view of the fact that deceased was where he had a right to be, engaged in his usual avocation; that appellant's wire was suspended over his land without right, and it not being shown that deceased had knowledge of the extremely dangerous character of the current carried on the wire. (Italics supplied.)"
Had the deceased been fully apprised of the danger in touching the wire, no doubt the court would have reached a different conclusion.
In Steindorff v. St. Paul, etc., Co., 92 Minn. 496, 100 N.W. 221, plaintiff's intestate was killed while laying tin guttering on a roof, by touching a power wire running 22 inches from the outer edge of the gutter, at a joint where the insulation was worn off. It was there held on the facts that the question of contributory negligence was for the jury, but it does not appear that the intestate knew of the uninsulated condition of the joint, nor even that it was a wire carrying a dangerous current.
The trial judge did not err in giving for defendant the general affirmative charge with hypothesis.
We do not overlook the contention of appellant's counsel that there was a conflict in the evidence, viz. that Lewis, the chief electrician, stated that he gave the warning to intestate, while he was at work on this job, the day before the accident, and that Pitchford, intestate's superior, stated that Dorough had not worked before on that job. But the record shows that Pitchford stated a little later that this was not the first day that intestate worked on it. We do not think there is any such conflict in the testimony quoted as to support the inference that Lewis' testimony that he warned intestate was either untruthful or erroneous.
There being no material conflict in the testimony, all of which came from plaintiff's own witnesses, for whose credibility he vouched, we cannot hold that there was prejudicial error in the refusal of the trial judge to allow plaintiff's counsel to argue to the jury that they could not or ought not to believe the testimony of Lewis with respect to the warning given to intestate. Where a party is not thus bound, and the issue of the credibility of the evidence is submitted to the jury, no doubt counsel would be entitled to argue that issue to the jury. See Shipp v. Shelton, 193 Ala. 658, 69 So. 102.
But where a party's own witnesses established his adversary's case or defense, without material conflict or dispute, there can be no issue upon the credibility of the evidence, and hence the affirmative charge might properly be given without such hypothesis.
In this aspect of the case, while the statement of the trial judge that he did not think the plaintiff was entitled to recover was technically erroneous, it could not have been prejudicial to plaintiff, and we do not think the judgment ought to be reversed therefor.
Let the judgment be affirmed.
Affirmed.
ANDERSON, C. J., and MAYFIELD and THOMAS, JJ., concur.