(164 Ala. 191)
NORTH ALABAMA TRACTION CO. v.

THOMAS.

(Supreme Court of Alabama. Dec. 16, 1909.)
1. EXCEPTIONS, BILL OF (8 59*)-ALTERATION.
Where a bill of exceptions was entitled,
"Henry Thomas, by A. J. Thomas, His Next
Friend," the fact that the initials "A. J." were
inserted in the caption after the bill was sign-
ed by the judge was not a material alteration;
the bill, when signed, reciting plaintiff's testi-
mony that he was 17 years old and that A.
J. Thomas, his next friend, was his father.
[Ed. Note. For other cases, see Exceptions,
Bill of, Dec. Dig. § 59.*]

2. STREET RAILROADS (§ 117*)—INJURIES TO
TRAVELERS-WILLFULNESS.

Motion was made to strike the bill of exceptions, because of the initials "A. J.," before the word "Thomas," which last appeared in the styling of the plaintiff, and which constitutes the initials of the plaintiff's next friend. The facts seem to be that plaintiff was riding along the streets in a buggy drawn by a horse owned and driven by one

Kenyon Glenn, and that one of defendant's cars approached the buggy from the rear, and the horse became frightened at the approach of the car and the sounding of the gong thereon, and that, observing this condi

In an action for injuries by plaintiff, who was thrown from a buggy by the horse becoming frightened at defendant's street car, evidence held to raise the issue of wanton misconduct on the part of defendant's motorman. [Ed. Note. For other cases, see Street Rail-tion, the gong was continued to be sounded roads, Dec. Dig. § 117.*]

3. STREET RAILROADS (§ 117*)-FRIGHTENING HORSES QUESTION FOR JURY.

and the car propelled towards the horse, causing the horse to become unmanageable and to run away, producing the injuries com

Where defendant's motorman admitted seeing the horse and the buggy in which plain-plained of. tiff was riding, but denied that the horse showed signs of fright, or that he was running away because of the motorman's continuous sounding of the gong as he approached the horse, whether the conditions were such as to indicate that the horse was frightened and unmanageable when the motorman saw him was for the jury.

[Ed. Note.-For other cases, see Street Railroads, Dec. Dig. § 117.*]

4. NEGLIGENCE (§ 93*)-IMPUTED NEGLIGENCE -DRIVER OF VEHICLE.

Where plaintiff, when injured, was riding in a buggy at the invitation of the proprietor, who had entire charge of the horse and buggy, the driver's negligence, if any, could not be imputed to plaintiff.

[Ed. Note. For other cases, see Negligence, Cent. Dig. 88 147-150; Dec. Dig. § 93.*] 5. APPEAL AND ERROR (§ 1068*)-HARMLESS ERROR INSTRUCTIONS-ERROR CURED BY VERDICT.

Failure to limit the jury's verdict to the amount demanded in the complaint was cured by a verdict for a sum much less than that de

manded.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4299, 4230; Dec. Dig. 1068.*]

6. STREET RAILROADS (8 87*)-CARS-OPERATION-SOUNDING GONG.

It was the duty of the motorman of a street car to cease sounding the gong, and, if need be, to stop the car, if practicable, and to use all precautions to allay the fright of a horse being driven on the street in front of the car, on discovering that the horse was becoming unmanageable because of his fright of the car.

[Ed. Note. For other cases, see Street Railroads, Cent. Dig. §§ 181, 182; Dec. Dig. § 87.*1 7. TRIAL (§ 260*)-REQUESTED CHARGE-IN

STRUCTIONS GIVEN.

It is not error to deny a requested charge covered by instructions given.

[Ed. Note.-For other cases, see Trial, Cent. Dig. 88 651-659; Dec. Dig. § 260.*]

Appeal from Law and Equity Court, Morgan County; Thomas W. Wert, Judge.

Action by Henry Thomas, pro ami, against

The following charges were given at plaintiff's request: (2) "I charge you that the negligence of the driver, Kenyon Glenn, if you find he was negligent, cannot be imputed to the plaintiff, Henry Thomas, and cannot bar his recovery in this case, if you find said plaintiff was not guilty of negligence." (8) "If you find from the evidence that plaintiff is entitled to recover in this case, you may award him such damages as will be a fair equivalent in money for the mental and physical pain that plaintiff suffered, or that is reasonably certain he may have endured, if any, and a fair equivalent for the permanent impairment of his ability to perform the ordinary duties of life as a natural result of the injuries complained of." Charge Y, referred to, is as follows: "If you believe from the evidence that the proximate cause of the injury to plaintiff was the negligence of Kenyon Glenn, then your verdict should be for the defendant."

John C. Eyster and Tennis Tidwell, for appellant. Wert & Lynn, for appellee.

ANDERSON, J. Whether the initials were or were not inserted before the name of "Thomas," the next friend, in the caption of the bill of exceptions, after it was signed by the presiding judge, there was no material alteration of same. The bill of exceptions recited when signed: "I am 17 years of age. A. J. Thomas, my next friend in this suit, is my father." (Plaintiff's testimony in transcript, page 20.) The motion to strike the bill of exceptions is overruled.

Counsel for appellant insists that the fourth count of the complaint charges the defendant's servants with wanton or willful misconduct, and that there was no proof of same, and that the court erred in refus

ing the general charge as to said count. We by the defendant, exonerating it from liaconcede the correctness of the contention bility on account of the negligence of Glenn, that the fourth count does charge wanton or as these charges were, in effect, duplicated willful misconduct, but do not agree that by given charges. See charge Y given for there was no proof in support of the charge, the defendant. and think that the trial court properly submitted the question to the jury.

The judgment of the law and equity court is affirmed.

Affirmed.

MCCLELLAN, MAYFIELD, and SAYRE, JJ., concur.

(164 Ala. 216)

& IRON CO. (Supreme Court of Alabama. Dec. 21, 1909.) 1. APPEAL AND ERROR (§ 1040*)—HARMLESS ERROR-SUSTAINING DEMURRER.

Any error in sustaining a demurrer to a count of the complaint was harmless, there being remaining counts so similar that evidence, which would have supported or justified a verdiet under such count, would equally have sup

ported the same verdict under the other counts. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4089-4105; Dec. Dig. § 1040.*]

The plaintiff's evidence showed that the horse was frightened and exhibited many signs that he was trying to run away, and the jury could well infer that the defendant's servant in charge of the car, when sounding the gong and causing the car to proceed, was conscious of the plaintiff's peril, and that his acts and conduct were calculated to in- WHALEY v. SLOSS-SHEFFIELD STEEL crease the same. Holmes, the motorman, admitted seeing the horse and buggy, but denied that the horse was showing signs of fright, or that he was running away. It was for the jury, however, to determine whether or not the conditions were such as to indicate that the horse was frightened and unmanageable when Holmes saw him. Counsel for appellant concedes that charge 2, given for the plaintiff, asserts the law, but insists that the giving of same was error, because it assumed that plaintiff had no control over the driver. The undisputed evidence showed that the plaintiff was merely riding in the buggy, upon the invitation of Glenn, the proprietor, and who had entire control of the horse and buggy, and that plaintiff had no control over the said Glenn. We need not determine whether or not there was error in giving charge 8, as the defect argued by counsel was cured by the verdict, which was for a sum greatly less than the amount claimed in the complaint. This charge, unlike the one in the case of Alley v. Daniel, 75 Ala. 403, set out the elements of damages, and, while it did not confine the damages to the amount claimed, the verdict cured this omission; it being for less than the sum claimed in the complaint.

The other insistences of error are very general, as counsel merely argues the subject and refers to charges covered by the proposition, leaving us to separate and designate such charges as to which the argument may be applicable. We will say, however, that the charges invoking the principle argued were properly refused. Whether it was the duty of the motorman to sound the gong at crossings, and whether it is or is not negligence when horses are frightened by said sounding, we need not decide as to cases where there was no knowledge of peril. The facts in this case afford an inference that the plaintiff was in peril and that this fact was known to the motorman. If such was the case, it was not only the duty of the motorman to cease sounding the gong, but to stop the car, if practicable, and to use all precautions to allay the fright of the animal.

The trial court did not commit reversible error in refusing certain charges, requested

2. EXPLOSIVES (§ 8*)-INJURIES FROM EXPLOSION-LIABILITY-PLEADING.

leging any negligence or actionable wrong in
A count for explosion of dynamite, not al-
the storing, keeping, or explosion thereof, and
not alleging sufficient facts to show that the
storing or keeping of it was a nuisance per se,
is insufficient.

Dec. Dig. § 8.*]
[Ed. Note.-For other cases, see Explosives,

3. EXPLOSIVES (§ 8*)—KEEPING EXPLOSIVES

PLEADING.

A count for explosion of dynamite merely alleging the storing or keeping of large quantily settled portion of a city, in proximity to ties of dynamite, or other explosives, in a thickmany buildings and persons, does not show a nuisance per se.

[Ed. Note.-For other cases, see Explosives, Dec. Dig. 8 8.*]

4. EXPLOSIVES (§ 8*)-KEEPING EXPLOSIVES.

Whether the storing or keeping of explosives in a city constitutes a nuisance depends on the quantity and kind of explosives kept, the purpose and length of time for which it is kept, in which it is kept, and what protection is afthe kind and character of the magazine or house forded by the mode of keeping.

[Ed. Note. For other cases, see Explosives, Dec. Dig. § 8.*]

5. EXPLOSIVES (§ 8*)-ACTION FOR DAMAGES -PLEADING-KEEPING EXPLOSIVES.

ing of explosives was a nuisance must be allegThe facts showing that the keeping or stored, and mere averments that they were kept in large quantities, and in a thickly settled portion of a city, are insufficient.

[Ed. Note.-For other cases, see Explosives, Dec. Dig. § 8.*]

6. EXPLOSIVES (8*)-ACTION FOR DAMAGES -PLEADING-KEEPING EXPLOSIVES.

As it might be safe to keep 100 or 1000 pounds of one explosive and dangerous to keep 50 pounds of another explosive, a complaint for explosion should not allege, in the alternative, the keeping of dynamite "or other explosives.' [Ed. Note. For other cases, see Explosives, Dec. Dig. § 8.*]

7. EXPLOSIVES (§ 8*) - NEGLIGENT KEEPING | Wholly within the realm of conjecture and OR STORING-LIABILITY. doubt" is proper.

plosion could not have been anticipated or avert- | according to the testimony of the witnesses, ed by human foresight.

[Ed. Note. For other cases, see Explosives, Dec. Dig. § 8.*]

Appeal from City Court of Birmingham; H. A. Sharpe, Judge.

Action by Lewis Whaley against the SlossSheffield Steel & Iron Company for damages to his property caused by the explosion of dynamite or other explosive substance. From a judgment for defendant, plaintiff appeals.

Affirmed.

if such testimony is in conflict with what their personal inspection discloses." (6) “If the jury believe from the evidence in the case that the explosion would probably have occurred, regardless of whatever means might have been employed, and that the magazine was located at a proper place, you must find

a verdict in favor of the defendant." (7) "In estimating the injury done to plaintiff's storehouse, the jury have a right to consider the

condition of such storehouse at the time they saw it." (8) "If you believe from the evidence in the case that the explosion could not have been anticipated nor averted by human foresight, you must find a verdict in favor of the defendant."

Tillman,

Kerr & Haley, for appellant.
Grubb, Bradley & Morrow, for appellee.

MAYFIELD, J. Appellant sued to recover damages for injury to his storehouse, caused by the explosion of dynamite which the defendant had stored in its magazine, built for such storage purposes, upon its own premises.

The charges refused to the plaintiff are as follows: (1) General affirmative charge. (2) "If the jury find from the evidence that the defendant negligently kept large quantities of dynamite and other explosives in a wooden magazine within the incorporated town of North Birmingham, where the same was liable to explode, and they further find from the evidence that by reason of its being so negligently kept it did explode with such violence as to cause damage to plaintiff's storehouse and residence, then they must find for the plaintiff." (3) "If the jury find from the evidence that the defendant kept large The defendant, at the time of the explosion, quantities of dynamite and dynamite caps in and for a long time prior thereto, was ena wooden building or magazine in a thickly gaged in the manufacture of iron, and for settled portion of the town of North Birming- this purpose it was necessary to blast the ham, where there were in proximity many lime rock used for flux as well as the iron buildings or persons, and that said dynamite ore. The defendant's plant was located upon and dynamite caps were liable to explode and a thin vein of lime rock, which was exposed, do serious injury to such persons or prop- or near the surface, there being little earth erty, and that said explosive did explode with or drift formation upon the limestone. The such violence as to damage the property of furnace was evidently thus located because the plaintiff, then the jury must find for the of the availability and accessibility of the plaintiff." (4) "If the jury find from the evi-lime rock. To render this rock available for dence that the defendant stored dynamite in large quantities for its use within the incorporated town of North Birmingham, where there were in proximity many buildings and persons, and that said dynamite was liable to explode and do serious injury to such persons or property, and if they further find that it did explode with such force and violence as to damage the property of plaintiff, then the jury must find for the plaintiff."

use in the furnaces, it was necessary to blast it, and large quantities of dynamite were necessary for this purpose. After defendant's plant was thus located the town of North Birmingham was built up and incorporated, so as to include its plant, and it continued to operate it thereafter. So there is no contention as to the negligence or wrongful location of the plant, aside from the magazines in which the explosives were stored. On the 2d The following charges were given at the in- of May, 1906, there was a violent explosion stance of the defendant: (1) "If, from all the of this dynamite stored in the magazines, evidence in this case, the jury find that the which destroyed a great deal of property in cause of the explosion lies wholly within the the vicinity, including the plaintiff's store, realm of conjecture and doubt, you must find which is the basis of this action. No specia verdict in favor of the defendant." (2) fied cause of this explosion was shown. The "The burden of proof in this case is on the allegations of some counts of the complaint plaintiff to show that the explosion alleged and the evidence tended to show it was proboccurred by reason of the negligence of the ably the result of different causes. The trial defendant or its servants or agents." (3) resulted in a verdict and judgment for the "The burden of proof in this case is not on defendant, from which the plaintiff appeals. the defendant to acquit itself of negligence." It is insisted that the court erred in sus(4) "The jury is not bound to accept the tes- taining a demurrer to the fourth count. If timony of any witness in this case as truth, this could be said to be true (but we think if, after a personal inspection of the matter it was not), it would clearly be without inabout which such testimony was given, the jury, because there were other counts rejury believe that such testimony is untrue." maining so similar to this that no possible (5) "The jury is not bound to return a verdict' injury could result, for the reason that evi

dence which would have supported or justified a verdict under that count if in would equally have supported the same verdict or judgment under the other counts. It was, however, insufficient, in that it failed to allege any negligence or actionable wrong in the storing, keeping, or explosion of the dynamite, nor did it allege sufficient facts to show that the storing or keeping thereof was a nuisance per se. As tending to this, it merely alleged the storing or keeping of large quantities of dynamite or other explosives in a thickly settled portion of the city of North Birmingham, in proximity to many buildings and persons. This, without more, is not sufficient. The exact question was decided by this court in the case of Kinney v. Koopman & Gerdes, 116 Ala. 310, 22 South. 593, 37 L. R. A. 497, 67 Am. St. Rep. 119, which reviewed all the authorities on the subject, both in this and other states. Neither do we construe the decision in the case of Rudder v. Koopman & Gerdes, 116 Ala. 332, 22 South. 601, 37 L. R. A. 489, to hold that a count like the one in question is good in all cases against demurrer. It is true that there are expressions in both cases and quotations in both from the same authorities which would seem to support the contention of appellant that this count is sufficient. It is also true that these two cases were against the same defendants, and were each founded or based upon identically the same wrongful act, to wit, the keeping or storing and the explosion of quantities of dynamite powder, and other explosives, within the corporate limits of the town of Cullman, Ala.

together, Justice Coleman writing the opinion of the court in the one case and Justice Head in the other. Neither of the opinions passed upon the sufficiency of each count separately, but each reviewed practically the same authorities, and then announced certain propositions of law applicable to the same, the effect of which was to hold some of the counts good and some bad, and the opinion in each case expressly saying some were bad and some were good; and the judgment of the lower court was reversed in each case because of the court's sustaining demurrers to some of the counts without pointing them out further than by applying the principles of law announced to the respective counts. So it follows that both cases were properly reversed under the decision in either. Yet some of the propositions of law announced in the two cases are directly conflicting, and they are based upon, and cite, the same authorities in support of the respective conclusions, and neither one of the cases refers to the other further than the statement above referred to by Justice Coleman.

One of the questions as to which these two decisions conflict is: What is sufficient to constitute a nuisance per se as to the keeping or storing of explosives?-the one holding that the storing or keeping of dynamite or gunpowder in large quantities in a thickly settled portion of a city is not a nuisance per se; the other, that it is. It is also true that there is a long and strong line of decisions of other courts, both before and since these decisions, that support each of these two conflicting propositions. The complaints appear to have been drawn But all of the cases, so far as we have exby the same attorneys in each case. The amined them, hold that, in order to render complaint in each case consisted of several a party liable for damages the result of counts, and demurrers were sustained to some explosives, it must be shown, first, that the of the counts and overruled as to others. In explosives were so manufactured, kept, or Kinney's Case a trial was had upon these stored, etc., as to constitute a nuisance, eicounts as to which demurrers were overrul- ther public or private; or, second, that the ed, which resulted in a verdict for defend-person so manufacturing, storing, keeping, ant; while in Rudder's Case the demur- or handling the explosive was guilty of rer was sustained as to all the counts, and some negligence or want of care which proxthe court declined to allow plaintiff to file imately caused the explosion which resulted others similar to those already passed upon. in the injury. All hold that one or the other The plaintiff then declined to plead further, must be shown. and suffered judgment final. The appeal was taken by the plaintiff in each case to the same term of this court, and in each appeal were raised the questions as to the sufficiency of certain counts of the complaint, some of the counts in each case being almost identical, a mere change as to the names of the plaintiffs, which were, of course, different. The cases seem to have been submitted at the same time, but not together, as the styles of both cases appear in the report of the Kinney Case, and Justice Coleman prefaces his opinion by the remark that the material questions were the same in the two cases, and probably it would

The pleadings must allege facts showing the one or the other. Mere general conclusions are not sufficient, except as to negligence, which as a rule (especially in this state) may be alleged in very general terms. The storing or keeping of the explosives, as alleged in the fourth count, might or might not be a nuisance, depending upon the quantity and kind of explosive kept, the purpose for which it was kept, the length of time for which it was kept, the kind and character of the magazine or house in which it was kept, what protection was afforded by the mode of keeping from liability to explode. There were no averments to show