TION. The oral charge must be construed as a whole, and a judgment cannot be reversed merely because a separate part thereof, standing alone and unexplained, is erroneous, where the charge construed as a whole correctly states the law. 9. TRIAL (8295*)-INSTRUCTIONS-CONSTRUC- | of the city of Birmingham, and uses electricity as its motive power. The evidence tended to show that a wire, charged with electricity by contact with the trolley wire by which the cars were run, hung down over one of the streets in a residence portion of the city, either touching the ground or in close proximity to it, and the appellee, a child of five years of age, came in contact with it, and was injured. The jury was authorized to infer from the testimony of appellee that the injury was painful and serious, but the testimony of appellant tended to show that the injury was slight. [Ed. Note. For other cases, see Trial, Cent. Dig. 88 703-713; Dec. Dig. § 295.*] 10. TRIAL (§ 256*)-INSTRUCTIONS-EFFECT OF EVIDENCE. A charge, in an action for personal injuries, that if plaintiff is entitled to recover he would be entitled to recover punitive damages, on the theory that the injury was wantonly inflicted, as alleged in a count of the complaint, and a charge that it is within the discretion of the jury finding for plaintiff to allow punitive damages, without limiting the recovery to such count, when considered in connection with other charges defining wantonness, declaring that the question of punitive damages is in the sound discretion of the jury, defining the measure of compensatory damages, and authorizing punitive damages on the jury finding that the wrongdoer is deserving of punishment, are not charges on the facts, and are misleading, in the absence of any requested explanatory charge. [Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 628-641; Dec. Dig. § 256.*] 11. DAMAGES (§ 87*)-PERSONAL INJURIESPUNITIVE DAMAGES. Where the jury gave to one suing for a personal injury a sum sufficient to compensate him for the actual damages sustained, they gave to him all that he was entitled to as a matter of right, and any amount added thereto because of the wrongdoer's wantonness is simply as a punishment of the wrongdoer. The evidence, without conflict, showed that the wire was hanging over the street, as above stated, on Saturday, the 26th day of June, and that on that day a boy was burned by coming in contact with it, and that it remained in that position until Tuesday, the 29th day of June, when the appellee came in contact with it, and was injured, as above stated. The evidence further showed, without conflict, that about 8 o'clock on Monday morning, the 28th of June, the father of the boy who was burned on the previous Saturday called at the office of appellant, in the city of Birmingham, and, seeing a lady in the business portion of the office, whom the evidence tended to show was an employé of appellant, told her that he desired to make a report to appellant about the condition of the wire, and that she directed him to see a man in the rear part of the business office and make the report to him; that he did as directed, and reported the condition of the wire to a man engaged at the time in writing, and the man said: "Much obliged. He would move it"-or simply, "Much obliged;" that on the 29th of June, and after appellee was injured, some one drove up to the wire, cut it down, and removed it. There was no evidence that the wire from which appellee received his injuries was hanging down, as above stated, prior to Saturday, the 26th day of June, and the evidence showed that the 13. APPEAL AND ERROR (§ 1005*)-VERDICT-wire had fallen into the hanging position CONCLUSIVENESS. [Ed. Note.-For other cases, see Damages, Cent. Dig. §§ 188-192; Dec. Dig. § 87.*] 12. DAMAGES (§ 94*)-PERSONAL INJURIESACTUAL AND PUNITIVE DAMAGES. Whether injuries to a child by contact with a live wire suspended over a street were serious or only painful bears on the question of the amount of actual damages, and on the question of wantonness in permitting the wire to remain where dangerous to human life, in which case the punishment of the wrongdoer for wantonness would properly be greater than if the wire was not a dangerous instrument, but one simply calculated to inflict painful injuries. [Ed. Note. For other cases, see Damages, Dec. Dig. 94.*] A verdict as to the extent of the injuries sustained by one suing for a personal injury is conclusive on appeal from an order refusing a new trial, unless the record affirmatively shows that the jury did a palpable wrong. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. 88 3948-3954; Dec. Dig. 1005.*] above described, because the arm or leader which held it in its proper position had become detached, in some way, from the pole on which it was strung. [1] 1. The appellant, in the operation of its business, employed and had a right to employ electricity, one of the most insidious Appeal from City Court of Birmingham; and violent, and at the same time one of the C. W. Ferguson, Judge. Action by Willie Murphy, a minor, against the Birmingham Railway, Light & Power Company. From a judgment for plaintiff, defendant appeals. Affirmed. Tillman, Bradley & Morrow and Charles E. Rice, for appellant. Bowman, Harsh & Beddow, for appellee. DE GRAFFENRIED, J. The appellant owns and operates the street railway system most useful, forces known to man. It is, to use the language of the Supreme Court of North Carolina, in the case of Mitchell v. Raleigh Electric Co., 129 N. C. 166, 39 S. E. 801, 55 L. R. A. 398, 85 Am. St. Rep. 735, "the most deadly and dangerous power recognized as a necessary agency in developing our civilization and promoting our comfort and business affairs. It differs from all other dangerous utilities. Its association is with the most inoffensive and harmless piece of mechanism-if wire can be classified as of the court below was certainly as favorsuch-in common use. In adhering to the able to appellant as the law as applied to wire, it gives no warning or knowledge of its the facts of the case required it to be; and deadly presence. Vision cannot detect it. that the court committed no error in submitIt is without color, motion, or body. Latent- ting the question of simple negligence vel ly and without sound it exists, and, being non to the jury in the various phases in odorless, the only means of its discovery lies which that question was presented by the in the touch, which, as soon as done, becomes pleadings. Haynes v. Raleigh Gas Co., suits victim." While the law does not make pra; City Electric R. R. Co. v. Conery, 61 those who are permitted to use this deadly | Ark. 381, 33 S. W. 426, 31 L. R. A. 570, 54 agency insurers against all loss that may be Am. St. Rep. 262; Joyce on Electricity, §§ occasioned thereby, it does require of them the exercise of that constant vigilance and care which a man of reasonable prudence should exercise in respect of such a dangerous agent, taking into consideration his obligation to protect his fellows from all peril or danger which, by the exercise of reasonable prudence, can be avoided. Southern Bell Telephone & Telegraph Co. v. McTyer, 137 Ala. 612, 34 South. 1020, 97 Am. St. Rep. 62; Norfolk Ry. & Light Co. v. Spratley, 103 Va. 379, 49 S. E. 502; Haynes v. Raleigh | Gas Co., 114 N. C. 203, 19 S. E. 344, 26 L. R. A. 810, 41 Am. St. Rep. 786. Reasonable prudence requires that, where the danger is known to be great, the care and watchfulness shall be commensurate with it, and it is a legal truism that what, under some conditions, will amount to ordinary care will, under other conditions, amount to even that reckless disregard of the rights of others which, in law, is wantonness. Grand Trunk Ry. Co. v. Ives, 144 U. S. 408, 12 Sup. Ct. 679, 36 L. Ed. 485; Birmingham R., L. & P. Co. v. Williams, 158 Ala. 381, 48 South. 93; Matson v. Maupin, 75 Ala. 312. "Negligence consists in a want of proper care, which always depends upon the circumstances in a particular case. Greater care is required to preserve a diamond than an ordinary chattel." Carter v. Chambers, 79 Ala. 230. 438, 606; Trulock v. Wiley (C. C. A.) 187 2. It is insisted by appellant that the evidence by which the appellee sought to show that appellant had knowledge of the defective condition of the wire prior to appellee's injury was irrelevant and illegal; and that therefore there was no evidence from which the jury were authorized to infer that appellant had actual knowledge of the defect prior to appellee's injury. That the appellant had an agent, possessing the authority to inspect its wires and remedy defects or breaks in them, was necessary to the orderly and proper conduct of its business. Undoubtedly it had such an agent. Did appellee's evidence tend to show that this agent had knowledge of the defect prior to appellee's injury? S. & N. A. R. Co. v. Henlein, 52 Ala. 606, 23 Am. Rep. 578. [3, 4] The evidence tends to show that the party who gave the information, if he gave the information, of the defective wire, on the day before appellee's injury, not only had the right to give it, but that he had the right to demand that appellant repair the break. If his evidence is to be believed, he went to the place where he had a right to expect this agent to be, i. e., the place of business of appellant. Upon inquiry there, he was directed to a man, at that time engaged in writing in appellant's office, and evidently an employé of appellant. He gave to that man the information, and that man, the evidence tends to show, said: "Much obliged. I will attend to it." The next day the matter was attended to, and the wire was moved. It is plain that the jury were authorized to infer from this evidence that the appellant had actual notice of the dangerous condition of the wire, and that the court properly admitted the above evidence as relevant to that issue, and properly submitted the question of its sufficiency to the jury. Tenn. R. Trans. Co. v. Kavanaugh, 101 Ala. 1, 13 South. 283; S. & N. A. R. Co. v. Henlein, supra. [2] In this case there is no question of contributory negligence. The appellee was confessedly injured by a defect in the wires of appellant. That defect existed for three days prior to appellee's injury. During that period, the cars of appellant were constantly passing the defective point, and the defect, if the evidence is to be believed, was open to ordinary observation. This defect existed on a residence street of a populous city. The most casual inspection by appellant would have discovered the defect. Three days before the injury of appellee, another boy was injured by this same defective wire. Appellant was under the duty to the residents of Birmingham of keeping its wires in such condition as not to subject them to needless peril. It did not do so, and it of- [5] 3. Wantonness is the conscious failure fered no evidence tending to show that the by one charged with a duty to exercise due break did not occur by reason of its negli- care and diligence to prevent an injury, aftgence, or that, if the break occurred through er the discovery of the peril, with knowlno neglect on its part, it could not reason- edge of the inevitable or probable results ably have been discovered and sooner repair- of such failure. It is not material whethed. In our opinion, under the evidence, on er such conscious failure to discharge such commission. In the discharge of such duty, an honest effort to prevent the threatened injury is required by the law of him who is charged with the performance of such duty, and who knows of the necessity of such performance. While wantonness may be inferred from an entire want of care, it does not follow that an entire want of care must be shown to establish wantonness. Birmingham R. & E. Co. v. Pinckard, 124 Ala. 372, 26 South. 880; Birmingham R. & E. Co. v. Williams, 158 Ala. 381, 48 South. 93. One may be guilty of willful or wanton misconduct without actual intention to injure, and, as we have above said, that which may, in some instances, amount to ordinary care under other conditions may amount to wanton misconduct. Grand Trunk Ry. Co. v. Ives, supra; Birmingham R. & E. Co. v. Williams, supra. [6] In the present case, the jury were authorized to infer from the evidence that appellant had knowledge of the defect in the wire, and that it was charged with electricity, and that it knew that it was in dangerous proximity to the street for 24 hours before appellee's injury. As the defect was remedied by simply cutting and removing the hanging wire, they were also authorized to infer that for that period the appellant had knowingly maintained a dangerous situation at a point on the street, for that wire, after it fell, was, under the evidence, a useless and unnecessary appendage to appellant's lines. The fact that after receiving the information appellant could speedily have removed the danger, and that it was its duty so to do, and that it utterly failed to perform that duty until after the wire had caused suffering and, as some of the evidence tended to show, danger to a child, were matters from which the jury had the right, within their exclusive province as the triers of the facts, to conIclude that appellant, in its conduct about this matter, evidenced that disregard of the requirements of the law and that recklessness of the safety and lives of others which in law amounts to wantonness. If it be true that evidence that children were accustomed to play in an alley where a bomb which, when exploded, becomes harmless was knowingly left was a circumstance from which wantonness might be inferred by a jury, it would seem that it should certainly be a question for the jury to say whether wantonness vel non existed where there was evidence tending to show that a per son had knowingly permitted a live wire, which some of the evidence tended to show was a constant and dangerous menace to adults and children alike, to remain in proximity to a residence street of a populous city for a period of 24 hours. Wells v. Gallagher, 144 Ala. 363, 39 South. 747, 3 L. R. A. (N. S.) 759, 113 Am. St. Rep. 50. See, further, Texarkana Gas & Elec. Co. v. Orr, 59 [7] When the facts are admitted or are undisputed, and are such that men of ordinary intelligence may reasonably differ with each other as to the conclusion to be drawn from them, such facts, as a general proposition, present matters for the determination of the jury, and not a mere question of law for the court. It is only when the facts are such that all reasonable conclusions to be drawn from them are the same that they present a mere question of law for the court. Trulock v. Wiley (C. C. A.). 187 Fed. 956; Railway v. Ives, 144 U. S. 408, 12 Sup. Ct. 679, 36 L. Ed. 485; Railroad v. Converse, 139 U. S. 469, 11 Sup. Ct. 569, 35 L. Ed. 213. In recognition of the above principle, the Supreme Court of Alabama, in the case of Southern Ry. Co. v. Burgess, 143 Ala. 364, 42 South. 35, said: "When the facts are admitted or undisputed, and the inferences from them are indisputable, or the rule of duty is fixed by law as the same under all similar circumstances, negligence is a question for the decision of the court; but, though the facts are undisputed, when negligence is a deduction to be drawn, and which may or may not be drawn by men equally sensible and impartial, the question must be submitted to the jury." In our opinion, therefore, the question as to whether, under the facts as contained in the bill of exceptions, the appellant was or was not chargeable with wantonness was a question of fact for the determination of the jury, and not a question of law for the determination of the court. Southern Ry. Co. v. Burgess, supra; Houston's Case, 83 Ala. 361, 3 South. 859; A. G. S. R. R. Co. v. Jones, 71 Ala. 487. 4. The court, in its oral charge to the jury, gave its instructions on the subject of wanton negligence in the following language: (1) "Now the character of negligence that I have been speaking about is what is called simple negligence. Now there is another theory in this case bearing upon the question of damages, in which the plaintiff seeks to recover what is called punitive or exemplary damages. Now, if you are reasonably satisfied from the evidence in this case, gentlemen, that the plaintiff is entitled to recover at all on the principles of law that I have stated, why, then, in addition to any actual damages that he would be entitled to, he would be also entitled to recover what the law calls punitive damages-that is, damages that punish, sometimes called exemplary damages-that is, damages that make an example of the individual on account of the wrong alleged to have been done. Now this is under what is called the wanton count in the complaint; that is, that they wantonly or intentionally or willfully allowed this, or caused this thing to be done. (2) "Now wantonness may be the equivalent of a willful or intentional wrong or in of the rights of the people, indifference as to the results, and with a consciousness on the part of those responsible for it that what they are doing or neglecting to do would probably result in injury to somebody, then it may be said that they would be guilty of such wanton conduct as would authorize the jury to impose what is called punitive damages. (3) "Now that, however, is left to the sound discretion of the jury trying the case. (4) "If you are reasonably satisfied from the evidence in the case that the plaintiff is entitled to recover, then it is within your discretion to say whether or not you will allow punitive damages; and, of course, if you allow that, it is within your discretion to say how much damage you would allow on that ground. (5) "If you are reasonably satisfied from the evidence in the case that the plaintiff is entitled to recover, the measure of damages under the count on simple negligence would be what is called compensatory damages; damages making good any loss the plaintiff may have sustained. Now the only damage that he could recover in a case of this sort, and on that ground, would be on account of physical pain growing out of the injury. And in assessing damages of that sort you have a right to take into consideration the nature, character, and extent of the injury, the amount of suffering, and the probable duration of the injury and the suffering. (6) "And, as I have said, if you think it is that sort of a case, worthy or deserving of punishment, of being made an example of, why then you could assess punitive damages within your discretion." We have, for our convenience, divided the charge into sections. The division of the charge into sections was not, of course, done by the trial court. [8-10] It is undoubtedly the law that a trial court has no right, ex mero motu, to charge the jury upon the effect of the evidence. Our statutes expressly prohibit courts from so doing. If sections 1 and 4 above set out contained all of the instructions of the court to the jury on the subject of exemplary damages, we would be justified in holding that the court had violated the law, and had instructed the jury on the effect of the evidence as to wantonness. But the oral charge of a court must be construed as a whole, and a judgment will not be reversed because a separate part of the charge, standing alone and unexplained, is erroneous, if the charge construed as a whole contains a correct statement of the case. Decatur Co. v. Mehaffey, 128 Ala. 242, 29 South. 646. The latter part of section 1, read in connection with sections 2, 3, 5, and 6 and the charge as a whole, convinces us that the court did not intend to charge, or did in fact charge, upon the effect of the evidence as to wantonness, and that, while the charge may nevertheless the jury were in all probability not actually misled thereby. In the case of S. & N. A. R. Co. v. Jones, 56 Ala. 507, the bill of exceptions contains the following: "The court charged the jury of its own motion as follows: 'If the jury believe from the evidence that the ox was killed by the defendant's train, and that the engineer of the train saw the ox within 10 or 15 feet of the road, or running close by the roadbed, on a line with it, and within a few feet of the road and train as it was moving, and under circumstances indicating danger of its getting on the track, then it was the duty of the engineer to use all means in his power to frighten away the ox until the danger had ceased (of which you are to judge from the evidence); and, failing to do so, he was guilty of negligence, for which the defendant must respond.'" Speaking of that charge, the Supreme Court of Alabama, through Stone, J., said: "The affirmative charge given in this case, under a severe grammatical criticism, might be construed as invading the province of the jury in pronouncing upon the effect of the evidence. We do not think, however, that such was the intention of the presiding judge. By the phrase 'failing to do so,' we think he meant, if the engineer failed to do so; and we think that, taken in the connection in which it was uttered, the jury so understood | the expression. Such elliptical forms of expression are not unusual, either in public or private speaking, and they rarely mislead. If the charge was ambiguous or likely to mislead, it was both the privilege and duty of counsel to call the court's attention to it, so that it might be corrected. 1 Brick. Dig. 342, § 99; p. 336, § 10; Carlisle v. Hill, 16 Ala. 398; 1 Brick. Dig. 251, §§ 123, 126. Hypercriticism should not be indulged in construing bills of exceptions." Reading the entire charge as a whole, we feel confident that in the expression in section 1 in which the court used the language, "why then, in addition to any actual damages that he would be entitled to, he would be also," etc., the court intended to say, "He may be also," etc.; and that in subdivision 4, after the words "entitled to recover," the court intended to say, "under the second count." No other reasonable construction can be put upon the charge. In section 1, if our construction is not the proper one, the trial judge charges the jury that appellee is entitled to exemplary damages, and yet, in sections 3, 4, and 6, he charges the jury that exemplary damages are allowable to appellee only in their discretion; and, if our construction is not the proper one, the court instructs the jury, in section 4, that if appellee is entitled to recover, then, in their discretion, they may allow him exemplary damages, and yet, in section 6, the court tells the jury that if they think it is a case worthy or deserving of punishment, of being made an example of, emplary damages. The charge on wanton- [13] Whether, when the wire, as the undisness may have been ambiguous, and for that puted evidence showed, struck or caught apreason may have possessed a misleading ten-pellee, holding him down and rendering it dency, but, if so, the judgment should not be difficult for him to get away from it, appelreversed on that account. "Though the lee's life was in danger or his health thereby charge of the court may have had a tendency seriously threatened, whether, subsequent to to mislead the jury, that is not an error that injury, and occasioned thereby, he sufwhich will reverse the judgment; the party fered from hemorrhages or developed hysterexcepting should have asked an explanatory |ical phenomena, and suffered, by reason therecharge." Daniel v. Bradford, 132 Ala. 262, 31 South. 455; 1 Brick. Dig. 344, § 129, and authorities cited; 6 Mayfield's Dig. 110, §§ 140, 141, 148, and authorities cited. of, the illness which appellee's testimony tended to show he suffered, or whether he was simply burned, and suffered no other damage, as the testimony of appellant tended 5. The verdict, in this case, was for $1,000. to show, were all deductions to be drawn by The appellant made a motion in the court the jury, and by the jury alone. The law below to set aside the verdict and for a new having committed all these matters to the trial upon several grounds, among them that jury, and the jury alone, their finding is not the verdict was excessive. The amount of only entitled to the highest weight, but is the verdict indicates that the jury, on the is- conclusive on appeal from the order of a sue of wantonness vel non, found, in all trial court refusing to grant a new trial, unprobability, for appellee, and that they, in less the record affirmatively shows that by the exercise of their discretion, may have their verdict the jury did a palpable wrong. penalized the appellant because of such wan-4 Mayfield's Dig. 315, § 63, and authorities tonness. As the jury, under the evidence, were authorized to determine that appellant, in this matter, was guilty, not only of simple negligence, but of wantonness, we shall in this discussion regard those subjects as conclusively settled. [11] When the jury assessed to appellee against appellant a sum sufficient to compensate him for the actual damages that he had suffered because of the wrong of appellant, they gave to him all that he was entitled to as matter of right. Any amount which they added to that sum, if they added any, because of appellant's wantonness was given to the appellee, not because he was entitled thereto as a matter of right, but simply as a punishment to the wrongdoer, and to deter it and others in similar businesses from such wrongdoing in the future. The appellee became a beneficiary of this sum assessed as punishment, because he was a sufferer on account of the wantonness, and was the only party to whom it could be given. Birmingham Water Works Co. v. W. R. Keiley, 56 South. 838. [12] The question as to whether the injuries of appellee were serious or only painful was of importance on the subject of the amount of the actual damages of appellee, and also on the question as to whether, by reason of the amount of electricity it contained, the wire, while hanging on the pole, was dangerous to human life or likely to produce serious injuries, or was simply an instrument of torture likely to produce painful but not serious injuries. If the wire was dangerous to human life or likely to produce serious injuries, the punishment of the appellant for wanton misconduct with reference to it should and would naturally have been greater than if it was not a dangerous instrument, but one simply calculated to inflict painful injuries. cited. We cannot say that, in this case, the jury were guilty of a palpable wrong, and it follows that the judgment of the court below must be affirmed. Affirmed. (2 Ala. App. 531) ST. LOUIS & S. F. R. CO. v. McCRORY. (Appellate Court of Alabama. Nov. 14, 1911.) 1. RELEASE (8 57*)-FRAUD-EVIDENCE. Evidence held to show that a promise to furnish a servant who had sustained a personal injury with employment was made to induce the servant to execute a release of his claim for personal injuries, authorizing the setting aside of the release for fraud, where there was no intent to so employ plaintiff, and he was not in fact employed. [Ed. Note.-For other cases, see Release, Cent. Dig. §§ 106-108; Dec. Dig. § 57.*] 2. RELEASE (§ 24*)—RESCISSION for FraudRESTORATION OF CONSIDERATION RECEIVED. One rescinding a release for fraud must make speedy restoration to the other party of anything received under it; and he cannot repudiate the release and hold what he has received under it. [Ed. Note.-For other cases, see Release, Cent. Dig. §§ 41-46; Dec. Dig. § 24.*] 3. RELEASE (8 57*) — Fraud — RESCISSION TENDER OF CONSIDERATION RECEIVED. servant of the money received as a part of the Evidence held to show that a tender by a consideration of his release of his claim for personal injuries would not be received by the master, excusing failure to make a tender as a condition to his right to rescind the release for fraud. [Ed. Note.-For other cases, see Release, Cent. Dig. §§ 106-108; Dec. Dig. § 57.*] 4. TRIAL (§ 139*)-QUESTION FOR JURY-EVI DENCE. Where the facts are such that men of orthe conclusions, the question is for the jury. dinary intelligence may reasonably differ as to [Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 338-341; Dec. Dig. § 139.*] |