104 So. 535 | Ala. | 1925
This is the third appeal in this case. Ala. Power Co. v. Conine,
As held by this court upon the second appeal (
"I was right close to Mr. Rogers and just a few feet from Mr. Conine. * * * The first thing that attracted my attention was Mr. Rogers made a noise, groaned or grunted or something, and I looked. That attracted my attention and he was staggering right near me, no more than 3 1/2 feet and right at me. I could have reached him. And he just gradually toppled down. And I looked then back, just a few feet, I would say 15 or 20 feet, *231 and Mr. Conine was lying on his back. Mr. Rogers fell entirely to the ground. I did not see Mr. Conine on his back before Mr. Rogers fell to the ground. * * * After Mr. Rogers fell, it was just an instant before I saw Mr. Conine on the ground."
True, the witness says that he did not see Conine until Rogers fell, but, if he instantly, upon Rogers falling, looked around and saw Conine lying on his back, the jury could infer that Conine fell first or contemporaneously with Rogers and that Conine either grabbed the wire first or about the same time that Rogers did. It was therefore a question for the jury as to whether or not Conine was conscious of the danger when he grabbed the wire, and was guilty of contributory negligence as set up in the defendant's plea A. There is another theory upon which the defendant was not entitled to the general charge under his plea A of contributory negligence, even if the plaintiffs' replication be discarded. Said plea charges that the intestate, with a knowledge of the danger, etc., seized the wire with his hand, meaning, of course, his bare or naked hand, and the proof shows that he grabbed the wire with a piece of paper, evidently thinking that it was a nonconductor, and would protect him. Therefore the jury could have inferred that he displayed ordinary prudence and was not conscious of the danger in grabbing the wire as he did.
Defendant's special plea 3 was not proven beyond dispute; for, as above indicated, it was a question for the jury as to whether the intestate or Rogers grabbed the wire first or contemporaneously. Upon the second appeal in this case, we intimated that the replication 2 was not good as to special plea 3, but the warning seems not to have been heeded on the last trial. We now hold that said replication was subject to the defendant's grounds of demurrer 11 and 12, if not others.
It is unquestionably the law that one who sees a person in peril through the negligence of another cannot be charged with contributory negligence as matter of law in risking his own life in attempting to effect a rescue, provided the attempt is not recklessly nor rashly done. It is equally as well settled, however, that a rescuer is not relieved of contributory negligence, if the peril of the person sought to be rescued was produced by his negligence and the defendant was not guilty of negligence towards him. 20 R. C. L. §§ 108 and 109, p. 132; Wagner v. International R. Co.,
The Alabama cases cited are not opposed to this rule. In the case of L. N. R. Co. v. Orr,
Applying the foregoing principle of law, it occurs to us that the issues upon the next trial can be greatly simplified, as the undisputed evidence shows that, if the defendant was guilty of negligence at all, it was entirely and solely through Rogers. Therefore, if the intestate was killed in an effort to save Rogers, and it was Rogers' negligence that caused his peril, then the plaintiff cannot recover. On the other hand, if the intestate seized the wire before or contemporaneously with Rogers, and not for the sole purpose of rescuing Rogers, it was a question for the jury as to whether or not the plaintiff could recover as for the negligence of Rogers in permitting the dangerous conditions, provided also the intestate was not guilty of contributory negligence, which was also a question for the jury.
For the errors heretofore pointed out the judgment of the circuit court is reversed, and the cause is remanded.
Reversed and remanded.
SOMERVILLE, THOMAS, and BOULDIN, JJ., concur. *232