BROWN, J.
[1, 2]
In stating a cause of action in negligence cases under our system of pleading, as a predicate for a general averment of negligence and to withstand appropriate demurrers, it is essential that the complaint show by affirmative averments a condition or state of facts which as a matter of law imposes on the defendant a duty toward the party injured. B. R., L. & P. Co. v. Cochrun, 179 Ala. 372, 60 South. 304; W. Ry. Co. of A. v. Madison, 16 Ala. App. 588, 60 South. 162; Kilgore v. B. R., L. & P. Co., 200 Ala. 238, 75 South. 996. When this is" shown, a general averment of negligence is sufficient as showing a breach of the duty. Doullut & Williams v. Hoffman, ante, p. 33, 86 South. 73, and authorities there cited.
[3]
When the averments of the pleadings are tested by demurrer, they are construed most strongly against the pleader, and must be certain, precise, and such as are necessary to avoid all ambiguity of meaning and exclude all intendments. “If we allow the averments to be true, but at the same time a case may be supposed consistent with it, which would render the averment inoperative,” such case will be presumed or intended unless excluded by particular averment. Scharfenburg v. Town of New Decatur, 155 Ala. 651, 47 South. 95; W. Ry. Co. of A. v. Madison, supra.
Unlike the complaint in B. R., L. & P. Co. v. Cochrun, supra, there is in the second count of the complaint in this case an absence of averment that the defendant’s “light wire that was charged with an electric current dangerous to human life” was so charged by the defendant, or that the defendant was at the time of the injury complained of using such light wire for the conveyance or transmission of an electric current. Non constat, the wire was being used, and was charged by some one else in no way connected with the defendant and for whose conduct the defendant was in no way responsible. This count was subject to the further objection that it does not aver that the alleged negligence on the part of the defendant proximately caused the injury to plaintiff’s intestate. These defects render the count subject to the demurrers which were erroneously overruled. Clinton Mining Co. v. Loveless, 85 South. 289;
Garrett v. L. & N. R. R. Co., 196 Ala. 52, 71 South. 685; South. Ry. Co. v. Crawford, 164 Ala. 178, 51 South. 340; 10 Encyc. Dig. pp. 574, 575, §§ 24, 26, and authorities there cited.
[4]
The first count of the complaint was not subject to the objections pointed out by the demurrers, and as to this count the demurrers were properly overruled, the first count being sufficient to present the material issues in the ease, and the evidence show-, ing- without dispute that the defendant was at the time of the injury to plaintiff’s intestate, in fact, using its wires in connection with its business to convey a current of electricity that was death-dealing in its character, and which the evidence tends to show, through the negligence of defendant, came in contact with the “tap” wires of the traction company leading into and supplying the Thombs home with electricity for lighting purposes. Applying the very broad doctrine announced in Birmingham South. Co. v. Goodwyn, 202 Ala. 599, 81 South. 341, it might be held that the failure of the count to aver such use was innocuous, and that the ruling of the court on the demurrer in this respect was error without injury. But as to the other defect — the omission of avermept that the defendant’s negligence proximately caused the injury — the doctrine of error without injury cannot be applied, for the reasons now to be stated. There was evidence tending to show that both the defendant and the traction company were guilty of negligence, the traction company in placing its “tap” wires above the heavily charged wires of the defendant, near a point where the wires of the defendant passed through
a vigorously growing and heavily foliaged shade tree, and in such proximity to defendant’s wires as that said “tap” wires were liable to sag and come in contact with defendant’s wires, or by the defendant’s wires being pushed up against said “tap” wires as a result of the natural growth of said tree, and in so maintaining said “tap” wires without proper inspection or safeguards to prevent contact, and the defendant in failing to inspect its said lines and keep said tree so trimmed, or use such other safeguards as might be necessary to prevent its wires from being pushed up against the wires of the traction company, or from being whipped against such “tap” wires by the vibration or swaying of the branches of said tree by the winds. The evidence further tends to show that the defendant’s wires and the wires of the traction company were, through one or the other of the several causes above stated, brought in contact, and that the deadly current from the defendant’s wires passed over the “tap” wires of the traction company into the home of plaintiff’s intestate; that he came in contact with said current, and that this was the cause of his death.
It is
an
essential
element of
plaintiff’s cause of action, and the burden was upon plaintiff to show that the defendant was guilty of negligence, and that such negligence, in and of itself, or concurring with the negligence of the traction company, proximately caused the death of plaintiff’s intestate. Clinton Mining Co. v. Loveless, supra; Garrett v. L. & N. R. R. Co., supra; W. Ry. Co. of A. v. Sistrunk, 85 Ala. 352, 5 South. 79; Home Tel. Co. v. Fields, 150 Ala. 306, 43 South. 711.
One of the litigated facts in this case, and which under the evidence it was the province of the jury to determine, was whether the death of the plaintiff’s intestate was the proximate consequence of the negligence of the defendant standing alone or concurring with that of the traction company, or whether the negligence of the traction company was the sole proximate cause of his death. The oral charge of the court made no reference whatever to ■ the doctrine of proximate cause, and the only reference thereto is found in charges 6 and 7 given at the instance of the defendant. These charges do not attempt to define the doctrine, and the jury were left wholly to their own resources, without appropriate instructions from the court, in determining what constituted proximate cause and in applying it to the evidence in the case.
While Best Park & Amusement Co. v. Rollins, 192 Ala. 534, 68 South. 417, Ann. Gas. 1917D, 929, and Birmingham South. R. R. Co. v. Goodwyn, 202 Ala. 599, 81 South. 341, may seem to support the view that this ruling was error without injury, yet we are not willing to extend the doctrine of error without injury to cases where there is an entire omission to plead an essential element of the cause of action, and the point is taken by an appropriate ground of demurrer.
[5]
The question to O’Toole made the basis of assignment of error 3 was not answered by the witness, and the objection thereto was, if error, without injury. There being no answer to this question, assignment of error 4 cannot be sustained.
[6]
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BROWN, J.
[1, 2]
In stating a cause of action in negligence cases under our system of pleading, as a predicate for a general averment of negligence and to withstand appropriate demurrers, it is essential that the complaint show by affirmative averments a condition or state of facts which as a matter of law imposes on the defendant a duty toward the party injured. B. R., L. & P. Co. v. Cochrun, 179 Ala. 372, 60 South. 304; W. Ry. Co. of A. v. Madison, 16 Ala. App. 588, 60 South. 162; Kilgore v. B. R., L. & P. Co., 200 Ala. 238, 75 South. 996. When this is" shown, a general averment of negligence is sufficient as showing a breach of the duty. Doullut & Williams v. Hoffman, ante, p. 33, 86 South. 73, and authorities there cited.
[3]
When the averments of the pleadings are tested by demurrer, they are construed most strongly against the pleader, and must be certain, precise, and such as are necessary to avoid all ambiguity of meaning and exclude all intendments. “If we allow the averments to be true, but at the same time a case may be supposed consistent with it, which would render the averment inoperative,” such case will be presumed or intended unless excluded by particular averment. Scharfenburg v. Town of New Decatur, 155 Ala. 651, 47 South. 95; W. Ry. Co. of A. v. Madison, supra.
Unlike the complaint in B. R., L. & P. Co. v. Cochrun, supra, there is in the second count of the complaint in this case an absence of averment that the defendant’s “light wire that was charged with an electric current dangerous to human life” was so charged by the defendant, or that the defendant was at the time of the injury complained of using such light wire for the conveyance or transmission of an electric current. Non constat, the wire was being used, and was charged by some one else in no way connected with the defendant and for whose conduct the defendant was in no way responsible. This count was subject to the further objection that it does not aver that the alleged negligence on the part of the defendant proximately caused the injury to plaintiff’s intestate. These defects render the count subject to the demurrers which were erroneously overruled. Clinton Mining Co. v. Loveless, 85 South. 289;
Garrett v. L. & N. R. R. Co., 196 Ala. 52, 71 South. 685; South. Ry. Co. v. Crawford, 164 Ala. 178, 51 South. 340; 10 Encyc. Dig. pp. 574, 575, §§ 24, 26, and authorities there cited.
[4]
The first count of the complaint was not subject to the objections pointed out by the demurrers, and as to this count the demurrers were properly overruled, the first count being sufficient to present the material issues in the ease, and the evidence show-, ing- without dispute that the defendant was at the time of the injury to plaintiff’s intestate, in fact, using its wires in connection with its business to convey a current of electricity that was death-dealing in its character, and which the evidence tends to show, through the negligence of defendant, came in contact with the “tap” wires of the traction company leading into and supplying the Thombs home with electricity for lighting purposes. Applying the very broad doctrine announced in Birmingham South. Co. v. Goodwyn, 202 Ala. 599, 81 South. 341, it might be held that the failure of the count to aver such use was innocuous, and that the ruling of the court on the demurrer in this respect was error without injury. But as to the other defect — the omission of avermept that the defendant’s negligence proximately caused the injury — the doctrine of error without injury cannot be applied, for the reasons now to be stated. There was evidence tending to show that both the defendant and the traction company were guilty of negligence, the traction company in placing its “tap” wires above the heavily charged wires of the defendant, near a point where the wires of the defendant passed through
a vigorously growing and heavily foliaged shade tree, and in such proximity to defendant’s wires as that said “tap” wires were liable to sag and come in contact with defendant’s wires, or by the defendant’s wires being pushed up against said “tap” wires as a result of the natural growth of said tree, and in so maintaining said “tap” wires without proper inspection or safeguards to prevent contact, and the defendant in failing to inspect its said lines and keep said tree so trimmed, or use such other safeguards as might be necessary to prevent its wires from being pushed up against the wires of the traction company, or from being whipped against such “tap” wires by the vibration or swaying of the branches of said tree by the winds. The evidence further tends to show that the defendant’s wires and the wires of the traction company were, through one or the other of the several causes above stated, brought in contact, and that the deadly current from the defendant’s wires passed over the “tap” wires of the traction company into the home of plaintiff’s intestate; that he came in contact with said current, and that this was the cause of his death.
It is
an
essential
element of
plaintiff’s cause of action, and the burden was upon plaintiff to show that the defendant was guilty of negligence, and that such negligence, in and of itself, or concurring with the negligence of the traction company, proximately caused the death of plaintiff’s intestate. Clinton Mining Co. v. Loveless, supra; Garrett v. L. & N. R. R. Co., supra; W. Ry. Co. of A. v. Sistrunk, 85 Ala. 352, 5 South. 79; Home Tel. Co. v. Fields, 150 Ala. 306, 43 South. 711.
One of the litigated facts in this case, and which under the evidence it was the province of the jury to determine, was whether the death of the plaintiff’s intestate was the proximate consequence of the negligence of the defendant standing alone or concurring with that of the traction company, or whether the negligence of the traction company was the sole proximate cause of his death. The oral charge of the court made no reference whatever to ■ the doctrine of proximate cause, and the only reference thereto is found in charges 6 and 7 given at the instance of the defendant. These charges do not attempt to define the doctrine, and the jury were left wholly to their own resources, without appropriate instructions from the court, in determining what constituted proximate cause and in applying it to the evidence in the case.
While Best Park & Amusement Co. v. Rollins, 192 Ala. 534, 68 South. 417, Ann. Gas. 1917D, 929, and Birmingham South. R. R. Co. v. Goodwyn, 202 Ala. 599, 81 South. 341, may seem to support the view that this ruling was error without injury, yet we are not willing to extend the doctrine of error without injury to cases where there is an entire omission to plead an essential element of the cause of action, and the point is taken by an appropriate ground of demurrer.
[5]
The question to O’Toole made the basis of assignment of error 3 was not answered by the witness, and the objection thereto was, if error, without injury. There being no answer to this question, assignment of error 4 cannot be sustained.
[6]
The remarks ,of the court to the jury as to charge 4, given at the request of the defendant, to the effect that before the jury could render a verdict they must all agree on the verdict, was in no sense a modification of the charge, but was merely explanatory of its meaning, and did not constitute error. Eiland v. State, 52 Ala. 322; St. L. & S. F. R. Co. v. Hall, 186 Ala. 353, 65 South. 33.
[7]
The tendencies of the evidence, as heretofore stated, justified the refusal of charges 1, 2 and 3 refused to defendant.
[8, 9]
The defendant was under the duty of safeguarding the public against dangers arising from the use of its dangerous agency, electricity, whether the danger arose from its negligence, the negligence of others, or
from
causes over which it had no control, to the extent of exercising reasonable care to correct or remove the cause of danger, and the duty under the circumstances here disclosed required reasonable care in the inspection of its lines. Curtis Law of Electricity, § 499, and authorities supra. Charges 8, 9, 10, 11, and 15 were therefore properly refused. And, if necessary to obviate and remove a dangerous condition, it was defendant’s right and duty to move the wire of the traction company. Curtis, Law of Electricity, § 499; New Eng. Tel. & Tel. Co. v, Moore, 179 Fed. 364, 102 C. C. A. 642, 31 L. R. A. (N. S.) 617; Economy L. & P. Co. v. Hiller, 203 Ill. 518, 68 N. E. 72. Charge E was therefore an invasion of the province of the jury, and was properly refused.
[10,11]
Charge 12 was properly refused for the use of the word “approximate” in lieu of “proximate.” Moreover, as we have stated, there was evidence tending to show that the negligence of the traction company and the defendant concurred in proximately causing the death of plaintiff’s intestate, and this charge ignores this phase of the evidence.
[12]
Charge B was abstract, and it was not error to refuse it.
The modification of the oral charge by the trial court, on exceptions being reserved to specific portions thereof, rendered innocuous the erroneous and misleading tendencies of the charge.
[13]
The court properly instructed the jury that the question as to whether the traction company could be sued after judgment in this case was not an issue in this ease.
[14]
The court sustained the defendant’s
objection' to the argument of W. T. Seibels, counsel for the plaintiff, and affirmatively excluded it from the jury and instructed the jury not to consider it. We hold that this instruction was sufficient to remove any prejudicial effect arising therefrom. B. R., L. & P. Co. v. Gonzalez, 183 Ala. 273, 61 South. 80, Ann. Cas. 1916A, 543.
As to the argument of Mr. Hill, attorney for plaintiff, the record fails to disclose any objection or exception to same, and we are not prepared to say that the trial court erred in overruling the motion for a new trial upon this ground.
This suit was brought under the homicide statute, and the amount of damages was peculiarly within the province of the jury, and we are not prepared to say that it is so excessive as to indicate that the jurors were actuated by passions or prejudiced in the amount awarded.
[15]
ANDERSON, C. J., concurs with the writer in holding that the demurrer should have been sustained to count 2 of the complaint. McCLELLAN, J., holds that the overruling of the demurrer to said count 2 was error, but thinks that it- was error without injury in view of the fact that the first count was sufficient to present all the issues, and the evidence was without dispute that the defendant was using its wires in the conveyance of a deadly current of electricity. SAYRE, SOMERVILLE, GARDNER, and THOMAS, JJ., constituting a majority, hold that the second count was not subject to the demurrers, and that they were properly overruled.
SAYRE and GARDNER, JJ., think that the trial court erred in not granting a new trial because of the improper argument of counsel. ANDERSON, C. J., and McCLELLAN, SOMERVILLE, THOMAS, and BROWN, JJ., are of the opinion that the trial court was not in error in this respect.
The result is that a majority of the court do not concur as to reversible error in any one of the points assigned and argued, and it must result in an affirmance of the cause. Cook v. Drew, 3 Stew. & P. 392 ; 3 Cyc. note 89, p. 405; Shollenberger v. Brinton, 52 Pa. 9-100; Browning v. State, 33 Miss. 47.
The judgment of the circuit court will therefore be affirmed.
Affirmed.
All the Justices concur in affirmance.
ANDERSON, C. J., and BROWN, J., dissent in part.
GARDNER and SAYRE, JJ., dissent in part.