(dissenting).
I cannot brin'g myself to concur in the majority opinion.
Under the rules of pleading in Alabama the complaint, which contains three counts, the same being numbered 16, 17, and 18, states a cause of action for wanton or wilful misconduct. Buffalo Rock Company v. Davis, 228 Ala. 603, 154 So. 556; Blankenship v. Van Hooser, 221 Ala. 542, 130 So. 63.
Only one question is here for decision: Was the jury authorized, under the evidence, to find wanton or wilful misconduct chargeable to the defendants?
The contractors, appellants, were engaged in reconditioning or reconstructing, for the State Highway Department of Alabama, a road leading from Opp to Andalusia, Alabama. Work on this road had been going on for several months. The contractors building this road had entered into this solemn contract with the State of Alabama: “The contractor shall at his own expense provide, erect, maintain and finally remove all necessary barricades, suitable and sufficient red lights, danger signals and signs; provide a sufficient number of watchmen, and take all necessary precautions for the protection of the work and safety of the public. Highways closed to traffic shall be protected by effective barricades on which shall be placed acceptable warning and detour signs. All barricades and obstructions shall be illuminated at night and all lights for this purpose shall be kept burning from sunset to sunrise.”
The evidence is without dispute that the contractors, as they worked on this road, opened it from time to time to the public. This was done, not to oblige the public, but to aid the contractors. This had been going on for months. J. R. Ramey, the defendants’ superintendent, testified, “There were times when it was open or closed. There were times after it was closed when it was reopened and closed again.” Ben Wescott, one of the foremen for defendants, followed his superintendent and testified, “1 knew about the highway being closed to travel at times and opened at times. There were certain times during the construction of the road when traffic was desirable, that is for the compaction (packing) of the road to harden the road, but during rainy times, if any traffic was on the road it would cause ruts or change the surface of the road, where it would have to be finished again. During dry times and during preparation of the sub-grade, we encouraged the traffic, and even directed it over different parts of the road, so as to compact (pack) all of the road. * * * I said traffic was desirable on this road at times. The barricades would be taken down and people would be invited to travel across the road. That would help-pack it down.” (Italics mine).
The travelling public, when the road was closed, would try and did break over from time to time and go upon the road. Moreover, the workmen would open and leave open the barricades and the public would persist in using the road. This displeased and angered J. R. Ramey, the superintendent of the contractors, who was in direct charge of the construction.
This same Ramey, superintendent in charge, approached one of his employees, William Wages, and asked him to put a steel cable or rope across the bridge which spanned the creek and which was a part of the road under construction. ■ Wages-*170testified that he suggested to Ramey the putting of barricades away from the bridge, but Ramey insisted on the cable on the bridge and witness told him of the danger of someone running into it, and then Ramey left him alone. But this man Ramey was irritated and mad: On or about January I, 1935 he caused to be stretched from side to side of the bridge a grey and rusty wire or rope cable. This wire or rope cable was securely fastened to the structure of the bridge on each side thereof, being laced across the way or traversed part of the bridge, and fastened with U-bolts so that it would not give or yield to pressure. Ramey testified, “I never give him any instructions about lights; there was never a light there as I know of.”
It was finally conceded by the contractors that “there were no instructions to put tights on this barricade and that none ■were there." (Italics mine). Ramey was still mad, and although the contract directed that: “All barricades or obstructions shall be illuminated at night”, he forgot to remember.
Horace Franklin, the deceased, . attempted to pass over this bridge in the night time, driving a gas truck. He ran his truck into the wire rope or cable and his head was severed from his body.
So that we may understand fully the wanton and wilful misconduct of the superintendent of the contractors, let us for a minute quote further from the evidence. While the evidence was in sharp conflict, J. W. Kelso, state auditor of the Woodmen of the World, Ed. Lowe Paul, then an employee of the defendants, H. H. Dorsey, street superintendent for the City of Opp, Tom Hart, a deputy sheriff, and William Danley, testified that “on .the night of the accident the road was not barricaded but was open to the bridge,” where the accident occurred. Ed. Lowe Paul, testified, “I watched up until Sunday before he was killed Friday — Thursday night or Friday morning. I know about the direction of the cable across the highway down at Poley creek. They took me off at that time. They-took all the guards off at that time. * * * There were no guards at the different places after this rope was put down at Poley creek on Sunday up to the time Mr. Franklin was killed.” Witness Lloyd testified, “I remember the occasion the company put that cable across the bridge down at Poley creek. I don’t think I guarded any after that. The best I know the guards were taken off at that time.”
Superintendent Ramey testified further, “I had a great deal of trouble with people coming around the barricades and coming on this road, even though we had wooden barriers on it. * * * All this barricade was placed there for was to stop traffic.”
Olliq Wiggins testified, “During the time that this road was opened to the public I would, at times, see lights along the side of the road burning, or at the entrances of the streets. Then a lot of times those lights would go out and there would be a few hours or a day or two it would not be burning, not all of them. That would be when the road was open to the public.” F. E. Lloyd testified, “During the time it was open to the public I would see lights burning at the intersections of some of the streets that lead into the road from the Cotton Mill at Opp. * * * There were some of the streets that were never barricaded,' even when the road was closed to traffic. * * * There were lights at nearly all the barricades but sometimes you would find them out and sometimes you would find them on. I have seen the lights burning when the road was open.”
Former employees testified that Ramey said he wanted the cable put up so that “if one hit the cable it would stop them; he wouldn’t go any further.” And, “if anyone ran into it, no one would run into it anymore.” Certain it was that Ramey was irritated and mad. One witness testified: “The cable was stretched in the main steel span right in the run of the creek in the center of the bridge. There were six or eight strands of cable. The top strand was a little higher than my head.”
Rufus Paul testified, “We didn’t put any bushes there at the time. I don’t know when those little bushes were put there.” Rainer, the undertaker, testified, “I did not see any light or anything to indicate that the barricade was there. There were no lights there. Some brush had been stuck in there; of course when I saw it it was on the side. They were a little above the cable, probably four or five feet; had been put in there, they were on the side of the cable, woven through, sticking in the side of the cable like. They were to the side when I went there.” One of the witnesses testified that he walked into the cable on the night of the accident. William Danley a witness, testified that on the *171same night Horace Franklin was killed, he was driving slow and just bumped the cable and stopped. “There was no warning of that cable before I got to it; I didn’t see any light or anything. I didn’t notice no bushes at all. It hadn’t been closed back there and I thought it was open.”
Ramey, the superintendent, became incensed, irritated, and mad. Two fifty cent red lanterns placed at the approach of this bridge would have saved the life of Franklin. Ramey deliberately set a death trap across the creek in question and Horace Franklin rides no more.
The majority opinion tells us the act of this superintendent was not wanton or wilful and that the defendants must go unwhipped of justice. I decline to concur in the opinion.
I respectfully dissent