128 F.2d 930 (5th Cir. 1942), 10232, Hannah v. Gulf Power Co.

Docket Nº:10232.
Citation:128 F.2d 930
Case Date:June 16, 1942
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 930

128 F.2d 930 (5th Cir. 1942)




No. 10232.

United States Court of Appeals, Fifth Circuit.

June 16, 1942

John M. Coe, of Pensacola, Fla., for appellant.

J. E. D. Yonge, of Pensacola, Fla., for appellee.

Before SIBLEY, HOLMES, and McCORD, Circuit Judges.

HOLMES, Circuit Judge.

This is an action for damages for the alleged wrongful death of appellant's husband, a lineman employed by the American Telephone & Telegraph Company. A motion in the court below to dismiss the complaint

Page 931

was sustained, and final judgment was rendered for appellee. The sole question on this appeal is whether the complaint states a cause of action.

The wrong and injury were done in Florida, and the court below was sitting in that state; but, although the local substantive law governs, we are not bound by the Florida rule that pleadings are to be construed most strongly against the pleader. 1 This is the reverse of what was true before the Erie Railroad decision 2 was rendered and before the Conformity Act, 28 U.S.C.A. § 724, was superseded by the Federal Rules of Civil Procedure, 28 U.S.C.A.following section 723c. 3

Construing the complaint, as required by the New Rules, so as to do speedy and substantial justice, 4 we find that the death of appellant's husband was caused by the concurrent negligence of appellee and said telephone company. The former, according to the averments, negligently maintained a power line carrying 6900 volts of electricity, which was parallel to said telephone company's line on the opposite side of the highway. In order to give lateral stability to its line, the appellee ran a steel guy wire under the telephone wire to a stub pole west of the telephone pole.

It is alleged that appellee was negligent (a) in maintaining a highly charged conductor strung between the ends of cross-arms on its power pole as close as five inches from the guy wire when good practice required a clearance of six inches; (b) in permitting the cross-arms to which the vertical conductor was attached to be loose and insufficiently fastened to the pole; (c) in failing to insulate the guy wire; and (d) in failing to ground the guy wire. Death is alleged to have resulted when fellow servants of the deceased negligently dragged a new telephone wire over said guy wire causing the latter to swing and vibrate. There being insufficient clearance between the guy wire and the conductor, and the guy wire being ungrounded and uninsulated, it is alleged that the conductor and the...

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