137 So. 397 | Ala. | 1931
We may agree with the contention of counsel for appellees that, in this case, unless appellees had knowledge of the existence and presence of the explosives, or were chargeable with notice of their explosive character, they would not be liable to plaintiff for the injuries caused by such explosion. 25 Corpus Juris, 185.
It is also true that a complaint in such a case must allege that the conduct of defendant in respect to the explosives created a nuisance or was negligent. Whaley v. Sloss-Sheffield Steel Iron Co.,
But, when the complaint alleges that defendants negligently placed the explosive in a highway, or in the possession of plaintiff, a minor of tender years, it sufficiently shows that they knew it was explosive in character or were negligent in not knowing it. It is not customary or necessary in a complaint of that nature to allege such knowledge or notice, when the conduct of defendant is charged in it to be negligent. Wells v. Gallagher,
This is not to be confused with the principle that, when the act which caused the injury is specified and is not negligent within itself, but only when the actor has notice of the danger of some one else with respect to it, it should be alleged that the actor had notice of the dangerous position of such other. Southern R. Co. v. Dickson,
Count 1 alleges that defendants negligently placed upon or in a public street or highway (naming it) in Gadsden a drum or barrel which contained a highly explosive substance. Being in a street, defendant should anticipate the proximity to it of children and others who have a right to be there. If defendant had no actual or imputed notice that it was explosive as alleged, it was not negligent in placing in the street the barrel containing an explosive. The count was not therefore subject to the demurrer on account of a failure to allege notice of its explosive qualities.
Counts 2, A, B, C, D, E, and F are likewise free from such objection for the reasons we have indicated.
The judgment of the circuit court must therefore be reversed, and the cause remanded.
Reversed and remanded.
ANDERSON, C. J., and GARDNER and BOULDIN, JJ., concur.
