Harvey W. Brown, as administrator of the estate of Luther H. Good, deceased, brings this suit for damages against the Mobile Electric Company, a corporation. He alleges, in substance, that his intestate’s death was wrongfully caused by the defendant ; that defendant was furnishing electricity to run a moving picture machine, under contract with intestate and others, and defendant, its agents or servants, while acting in the line and scope of their employment, unnecessarily and negligently charged a wire with which plaintiff’s intestate was likely to come in contact, while operating the machine, with a deadly current of electricity; that his intestate came in contact with said wire so charged, and as a proximate result thereof was killed; and that it was not necessary under the contract for defendant to furnish a current of electricity to operate the lights and to run the machine that was dangerous to human life. There was a jury and verdict for defendant, judgment thereon by the court, and from it plaintiff appeals.
“Defendant promised and agreed to furnish a current of electricity such as was reasonably necessary for said purpose, * * * and the defendant * * * did negligently furnish a greater current than was reasonably necessary for supplying said lights and operating said moving picture machine, * * * and plaintiff’s intestate, while engaged in and about his said business in said building, did come in contact with said wires or with said machine charged with said excessive current, and that he thereby received a shock of electricity which proximately caused Ms death,” etc.
This count as last amended is defective in failing to aver that the necessary and reasonably necessary current of electricity contracted for to run the lights and machine was not dangerous to human life, a deadly current. The contract may have called for a current that was dangerous to human life, a deadly current, to run the lights and machine ; if it did, then it would be no breach of duty for the defendant to furnish it; and it would not be liable if the death of plaintiff’s intestate was caused as a proximate consequence of coming in contact with it; and plaintiff could not complain even if the current furnished was greater than was reasonably necessary, for both currents would be dangerous to human life, a deadly cur
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rent — the current contracted for "by Ms intestate and the current furnished by the defendant. This amended count alleges no duty the negligent breach of which was the proximate cause of the death of Luther II. Good. This is necessary. The court did not err in sustaining the demurrers to it. Tenn. Coal & Iron Co. v. Smith,
“I wish you would state how many "grays there would be possible for a high tension current to get upon and into the wires and moving picture machine in the operating room of the Liberty Theater under the conditions that existed on the evening of May 25, 1919?”
“The qualifications of a witness to testify as an expert is a matter largely within the discretion of the court trying,the case, and the appellate court will not reverse its rulings unless there has been an abuse of that discretion.” Stewart v. S.-S.-S. & I. Co.,
There are many assignments of error based on rulings of the court permitting and not permitting opinions of experts on different matters to go to the jury, and to witnesses being allowed to give their opinions instead of narrating the facts and allowing the jury to draw the conclusion. The appellant insists that the court erred in each instance. As to this we need not decide. The case must be reversed for other errors hereinafter mentioned. It will serve no good purpose to analyze and discuss each of these questions and answers, to see if there was any error or any reversible error committed by the court. The above rules on these subjects and the authorities cited will be sufficient to aid and guide the court on another trial.
All of the witnesses in the case, except one, were seen, their demeanor on the stand observed, and their testimony heard in open court by the jury and judge.
The contract to furnish the electricity was the only documentary evidence. 'By it the defendant was to furnish a current to run fans, lights, and moving picture machine at the Liberty Theater for deceased and others; and it appears from the contract and the oral testimony this electric current to he furnished was not a deadly one or dangerous to human life.
Plaintiff’s Intestate, by the tendency of his evidence, was a strong healthy man up to the moment of his death, when in the conduct of his business in the theater he came in contact with the electric wire, then he was drawn up against the picture machine and was rigid until the switch was thrown off by another person, thereby cutting off the electric current; then he relaxed, became limp, and died immediately. This current of electricity was furnished by the defendant under the contract. The deceased had a hemorrhage of the lungs. There is a vigorous dispute in the medical testimony over the question of whether “such hemorrhage of the *64 lungs was produced by an electric shock or had no connection therewith, but was simply a breaking down of unresolved areas of inflammation in the lung tissues.”
i The evidence of the defendant, by witnesses in charge of the electric plant and by experts, tended to show in short and in substance that the defendant, its servants or agents, were guilty of no negligence in the cause of the death of deceased, because no excessive, dangerous, or deadly current could pass into the theater wires from the defendant’s plant, as the plant of defendant at the time was in proper repair, properly equipped, and properly operated. The witnesses go into detail in explaining how it would be physically, electrically and mechanically impossible for a deadly current, a dangerous current to human life or an excessive current to pass into the theater building without leaving signs that could be seen by some evidence on some part of the plant, its wires, transformers, or bulbs, etc.; and that there were no signs or evidences of any such currents anywhere.
At the request of the defendant the court gave the jury this written charge:
“The court charges the jury that, if they believe all of the evidence in this case, they ought to find a verdict for defendant.”
Was the giving of that charge error in this case? The plaintiff by its evidence has made out at least a prima facie case. Town of Athens v. Miller,
“That no person shall be barred from prosecuting or defending before any tribunal in this state, by himself or counsel, any civil cause to which he is a party.”
A party to a civil cause is by this guaranteed the right to be heard by himself or counsel before any tribunal in this state on all questions of law and credibility of the evidence, either of which may arise in the case. Peagler v. State,
In Dorough v. Ala. Power Co.,
“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. * * * 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 case by that charge the credibility of the evidence was submitted by the court to the jury; but the court refused counsel the right to argue that issue to them. This he was permitted to do by the organic law of this state. Section 10 of the Constitution guarantees that right to either party or his counsel. The courts cannot take it away from them. The courts should see they are not deprived of it. That question, the credibility of the evidence, having been submitted to the jury by the court, the counsel for each party had the right to be heard thereon by argument to them. Dorough v. Ala. Power Co.,
After the jury had been out for some time they requested to be brought into court. This being done, the presiding judge told them to have seats. The foreman of the jury remained standing and stated;
“We are in dispute about the charge that has been given and what it means. We cannot, any of us, believe all of the evidence.”
The presiding judge then asked the jurors what part of the evidence they did not believe, and the foreman replied:
“Some of us do not believe some parts and some do not believe other 'parts. We all differ on that.”
At the request of the defendant, the court then gave this written charge to them:
“The court charges the jury that if they believe the evidence in this case they ought to find a verdict for defendant.”
*65 Tile jury then retired to the jury room to consider the case again. After they had been ont for some time, they were brought back into the courtroom under orders of the presiding judge. The court then at the request of the defendant gave the jury this written charge:
“The court charges the jury that under the evidence in this case they ought to find a verdict for the defendant.”
That charge was read to the jury and the court said to them:
“The court is instructing you, in accordance with that charge, and is responsible for that charge, but you are bound by the charge.”
The foreman of the jury then inquired of the court:
“That is regardless of whether we believe the evidence or not?”
And the Court replied, “íes.”
The plaintiff excepted to said charge, and separately to each of the statements of the court to the jury in regard to it. The court by this directed the jury to bring in a verdict for the defendant.
Reversed and remanded.