In a most respectful way counsel for appellant have earnestly urged a reconsideration of our statement that the use of appliances and methods in general use by other well-regulated enterprises of the same sort is not a test of due care, in that, we thereby depart from the principle of the following cases: Louisville Nashville R. Co. v. Allen's Adm'r, 78 Ala. 494; Georgia Pac. Ry. Co. v. Propst, 83 Ala. 526, 3 So. 764; Richmond D. R. Co. v. Jones, 92 Ala. 218, 9 So. 276; Louisville N. R. Co. v. Hall, 87 Ala. 708, 6 So. 277, 4 L.R.A. 710, 13 Am. St. Rep. 84; Louieville Nashville R. Co. v. Hall, 91 Ala. 112, 8 So. 371, 24 Am. St. Rep. 863; Louisville Nashville R. Co. v. Hall, 193 Ala. 648, 69 So. 106; Connors-Weyman Steel Co. v. Kilgore, 202 Ala. 372, 80 So. 454; Reynolds v. Woodward Iron Co., 199 Ala. 231, 74 So. 360.
If we did fall into an error in so doing, we merely followed the opinion in Caldwell-Watson F. M. Co. v. Watson, 183 Ala. 326,334, 335, 62 So. 859, 863, again followed in Reynolds v. Woodward Iron Co., 199 Ala. 231, 235, 74 So. 360, in that respect. That case reconciled them with that of Davis v. Kornman, 141 Ala. 479, 37 So. 789, in the following manner: "We think the holding means, where evidence is shown that the ways and works of the defendant are unsafe, or insufficient, that proof that similar instruments are generally used by other prudent persons engaged in similar calling is evidence in rebuttal, and might influence the jury in holding that there was no negligence, but such proof would not, as matter of law, conclusively show that there was no negligence in the selection or use of such machinery or instrumentality." This theory is in accord with *Page 256 what is said to be the most generally accepted views on that subject. 45 Corpus Juris, 706. It is also thus there expressed: "Accordingly, if the conduct pursued or the methods adopted in the particular case do not measure up to the ordinary care which would be exercised by a prudent person under the circumstances, negligence may be found to exist notwithstanding such conduct or methods were in accordance with those customarily pursued or adopted. The reason is that the usual mode of doing a particular thing may involve a lack of proper care, and usage cannot avail to establish as safe in law that which is dangerous in fact, nor may a lack of due care be excused because of the fact that carelessness is customary at the place at which, or in connection with the occupation or undertaking in which, the injury occurred. So also, the circumstances of a particular situation may be such as to call for more vigilance and caution than might ordinarily be regarded as sufficient."
"What usually is done may be evidence of what ought to be done, but what ought to be done is fixed by a standard of reasonable prudence, whether it usually is complied with or not." Texas P. R. Co. v. Behymer, 189 U.S. 468, 470,23 S. Ct. 622, 623, 47 L. Ed. 905; Wabash R. Co. v. McDaniels,107 U.S. 454, 2 S. Ct. 932, 27 L. Ed. 605.
We have no doubt of the correct statement and interpretation of the rule which was made in our original opinion in this case, and do not think we have fallen into an error, nor failed to recognize and apply the rule of our cases.
The only question of difficulty which we encounter is whether there is evidence that the appliances and structures were so placed as that they measure up to the standard of reasonable prudence, when construed in the light of all the evidence. If there were nothing to justify an inference unfavorable to appellant, except the fact of the disastrous occurrence, proof that the appliances of appellant were such as are in general use by prudently managed enterprises of the same sort, and were constructed and placed pursuant to the same standard of care and skill, would be sufficient to justify an affirmative instruction duly hypothesized. Harris v. N.C. St. L. R. Co.,153 Ala. 139, 156, 44 So. 962, 14 L.R.A. (N.S.) 261; Lawson v. Mobile Electric Co., 204 Ala. 318, 322, 323, 85 So. 257; Louisville Nashville R. Co. v. Marbury Lbr. Co., 132 Ala. 520,32 So. 745, 90 Am. St. Rep. 917; Pettus v. Louisville Nashville R. Co., 214 Ala. 187, 106 So. 807.
We thought that there was evidence from which the jury could draw the conclusion that appellant could have so placed its ground wires with reasonable expense as to lessen to a minimum the danger of lightning to its customers. That thought is challenged by the showing that south of the grounded pole, on the same side of it as that on which plaintiff's service is situated, there were customers served from each of the poles on which there could have been a grounded wire, and that at each service there is a ground connection. By that we understand that the service lines to each house are connected to a water pipe or otherwise grounded at the house so served, and that such grounded connection serves all the purposes to be expected of a ground wire on the poles. But we thought that the extracts of the testimony we copied in the opinion proved to the contrary of that contention. We cannot now discover wherein we were thus in error. If such ground connection at the end of each domestic service line served the same useful purpose as a ground on the pole, the language of the witnesses we quoted has no meaning to us. Certainly such ground connection did not save the customer from the ill effects of the lightning. It had to pass through his house wiring before it reached the ground if we correctly understand it. But if the ground connection had been in the street the chances are, as it seems to us from such evidence, more probable that it would go to ground before reaching the house. We are supported in this theory, to which no sufficient answer is made, by the circumstance that while several, maybe all the customers, situated as plaintiff was, south of the grounded pole, received the shock, whereas there is no evidence that those north of it received any at all. To us this is a circumstance that such ground did protect them from the current in its passage north, whereas there was no such protection to those south, since the stroke was apparently south of such pole. Electricity is so proverbially uncertain in its course and consequences, can any one tell what it will do? Does reasonable prudence and care for those in danger require every reasonable precaution?
It is not the province of this court to say what is the specific duty of appellant to protect its customers from lightning strokes. We cannot say that it should have done one thing or another, or have had a ground wire on every pole or not, and have no idea to what extent such requirement would add to the cost of appellant's system (the record does not show); but all we do say is that there was evidence from which the jury could draw the reasonable conclusion that reasonable and prudent precaution had not been observed in respect to this customer, notwithstanding there may be no dispute in the evidence that other such enterprises conduct their business in the same general way. That state of the evidence would justify the affirmative charge if nothing else supported a fair adverse inference.
Application for rehearing overruled.
ANDERSON, C. J., and GARDNER and BOULDIN, JJ., concur. *Page 257