Sheffield Co. v. Morton

• Decision Date: 20 May 1909
• Citation: 161 Ala. 153,49 So. 772
• Parties: SHEFFIELD CO. v. MORTON.
• Court: Alabama Supreme Court

49 So. 772

161 Ala. 153

SHEFFIELD CO. v. MORTON.

Supreme Court of Alabama

May 20, 1909

Appeal from Circuit Court, Colbert County; D. W. Speake, Judge.

Death action by Lizzie C. Morton, administratrix, against the Sheffield Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

The facts sufficiently appear in the opinion of the court. There were a number of counts in the complaint, all of which were eliminated except counts 3 and 5.

Count 3 was as follows: "Plaintiff claims of the defendant the further sum of $20,000 damages, for that, whereas heretofore, to wit, on the 24th day of December, 1904, the defendant was maintaining and operating an electric wire from Sheffield, to and through the city of Tuscumbia, Ala.; that in a public place in the western part of said city of Tuscumbia, Ala., said wire was maintained a few feet above the ground near a bluff and at a point between Fifth and Sixth streets, within easy reach of pedestrians going on said bluff, where children were in the habit of going. And plaintiff alleges that said bluff, which was a public place was an uninclosed lot or common, where people in large numbers were frequently in the habit of going, facts known to the defendant; that on said date plaintiff's intestate an infant of the age of 10 years, went on said bluff, and while there came in contact with said wire, which was charged with a high and dangerous voltage of electricity and uninsulated; that defendant acknowledged that said wire was within easy reach of pedestrians going to and on said bluff and, knowing said wire was charged with electricity and was uninsulated, and that it was dangerous for persons to come in contact with, permitted said wire to remain within a few feet of the ground, in easy reach of children. And plaintiff avers that by reason of said wire being maintained as above stated plaintiff's intestate came in contact with the wire and the current of electricity, which caused him to fall to the ground at the base of the bluff, whereby he received great injury, to wit, his skull was crushed, and his body otherwise bruised, from which injuries he died on the 25th day of December, 1904."

Count 5: "Plaintiff claims of the defendant the further sum of $20,000 damages, for that, whereas, heretofore, on, to wit, the 24th day of December, 1904, defendant was engaged in furnishing electric lights for the city of Tuscumbia, Ala., and the inhabitants of said city, by electricity conveyed to and through said city by means of wires erected and maintained by defendants on poles in a populated portion of the city, to wit, between Fifth and Sixth streets, at a public place, near the western boundary of said city, one of defendant's wires was so constructed and maintained at said point near the edge of a bluff within easy reach of pedestrians going on or near the bluff. And plaintiff avers that said wire was charged with a high degree of electricity, dangerous to the life of a person coming in contact therewith, and was uninsulated; that on said date plaintiff's intestate was on the bluff, where he had the right to go, and came in contact with said wire by inadvertently placing his hands on the said wire, by which he received a shock and was thrown to the ground, whereby he received great injuries, from which he died on the 25th day of December, 1904. And plaintiff avers that the maintaining of the said wire at the point stated, within easy reach of pedestrians, said wire being heavily charged with electricity and uninsulated, was negligence which proximately contributed to intestate's death."

The demurrers to these counts raise the propositions discussed in the opinion, and are not necessary to be here set out.

Almon & Andrews, for appellant.

Kirk, Carmichael & Rather, for appellee.

SAYRE J.

This case went to the jury on counts 3 and 5 of the complaint. There can be no doubt but that, to maintain an uninsulated wire charged with a dangerous current of electricity in a public place and in such proximity to the ground that persons passing may come into contact with it, without more, constitutes negligence. "Res ipsa loquitur." In Postal Telegraph Cable Co. v. Jones, 133 Ala. 217, 32 So. 500, a contention that the failure to keep wires out of the way of travelers along a public road did not show a breach of duty was pronounced to be too palpably unfounded to require discussion. But that principle is of no avail to the plaintiff, for the general allegation that the place was a public place must be controlled by the more specific allegations of facts which demonstrate its true character.

Speaking, now, more especially of count 3, we do not interpret the allegation that the place was a public place to intend that it was public in the sense that it was the property of the public, or that the public had a right to go upon it; for, if so, the allegation is insufficient to that end. The further averment is alternatively that the place was an uninclosed lot or common. The count is no stronger than its weakest alternative. In this view of the count the fact which imposed duty upon the defendant was that the lot or common was a place, to use the language of the count, "where children were in the habit of going. And plaintiff alleges that said bluff, which was a public place, was an uninclosed lot or common, where people in large numbers were frequently in the habit of going, facts known to the defendant." The defendant could not be required to anticipate that children would go where they had no right to be; still less that they were in the habit of going to such a place. Nevertheless it cannot be said as matter of law that children going upon the lot after the manner described in the count are to be treated as mere trespassers, and the defendant relieved of all duty to care for their safety. At least, it is not for the defendant, which was not itself the owner of the property, so to say and so to treat them. Under the circumstances shown in the count, plaintiff's intestate, who is alleged to have been an infant of the age of 10 years, must be treated, in our opinion, as a person upon the lot by an implied license from the owner.

Every theory of negligence works around to the question whether some one did or failed to do what a reasonably prudent and competent man would be expected to do under given circumstances. In determining what precautions were reasonably necessary and incumbent upon the defendant in the use of its property at the place in question, it must be held to have considered the known extent and nature of the use to which the place was customarily put by others than its owner. In Railroad Company v. Stout, 17 Wall. 657, 21 L.Ed 745, commonly known as the first of the "turntable cases," Judge Dillon, presiding at the trial, after defining negligence in a manner not materially different from the general definition already expressed herein, charged the jury in the following language: "If the railroad company did not know, and had no good reason to suppose, that children would resort to the turntable to play, or did not know, or had no good reason to suppose, that if they resorted there they would be likely to get injured thereby, then you cannot find a verdict against them. But if the defendants did know, or had good reason to believe, under the circumstances of the case, that the children of the place would resort to the turntable to play, and that if they did they would or might be injured, then, if they took no means to keep the children away, and no means to prevent accidents, they would be guilty of negligence, and would be answerable for damages caused to children by such negligence." That charge was held by the Supreme Court of the United States to be an impartial and intelligent statement of the law, and was quoted with approval in the later case of Union Pacific Railway Co. v. McDonald, 152 U.S. 262, 14 S.Ct. 619, 38 L.Ed. 434. Mr. Justice Hunt, delivering the judgment of the court in the first-named case had to say: "So, in looking at the remoteness of the machine from inhabited dwellings, when it was proved to the jury that several boys from the hamlet were at play...