Woodward Iron Co. v. Burges , 219 Ala. 136 ( 1929 )

On Rehearing. It is now urged that count 1 fails to state a cause of action, for the reason that it fails to show a duty owing the plaintiff by the defendant not to maintain the live wire at the place in question; that, from aught appearing, the plaintiff was a trespasser notwithstanding the wire may have been on the line or even beyond the defendant's side. This might be true, but for the averment that the space or side, not owned or controlled by the defendant, was a roadway or a playground frequently used by children. If it was frequently used as a roadway or playground, this plaintiff was not necessarily a trespasser. Sheffield Co. v. Morton, 161 Ala. 153, 49 So. 772.

As heretofore stated, when no objection is taken to a complaint by demurrer, it should be liberally construed when necessary to support a judgment. Slight v. Frix, 165 Ala. 230,51 So. 601. There was proof from which the jury could find that the plaintiff was not a trespasser, and that the wire, at the point where he came in contact with same, was neither on the line or a little over the side not owned or controlled by the defendant. The defendant's application is overruled.

We still think that the judgment was excessive, and the plaintiff's application is overruled. Plaintiff is given 30 days to exercise the option provided in the original opinion, and if not so exercised, the cause will stand reversed and remanded.

GARDNER, BOULDIN, and FOSTER, JJ., concur.