Alabama Power Co. v. Jones

• Decision Date: 30 October 1924
• Docket Number: 7 Div. 438.
• Citation: 101 So. 898,212 Ala. 206
• Parties: ALABAMA POWER CO. v. JONES.
• Court: Alabama Supreme Court

101 So. 898

212 Ala. 206

ALABAMA POWER CO. v. JONES.

7 Div. 438.

Supreme Court of Alabama

October 30, 1924

Rehearing Denied Nov. 27, 1924.

Appeal from Circuit Court, Etowah County; Woodson J. Martin, Judge.

Action for damages for wrongful death by Langdon Jones, as administrator of the estate of Ralph Jones, deceased, against the Alabama Power Company. From a judgment for plaintiff defendant appeals. Affirmed.

Hood &amp Murphree, of Gadsden, and Martin, Thompson, Foster & Turner of Birmingham, for appellant.

E. O. McCord & Son, of Gadsden, for appellee.

GARDNER J.

This action is by appellee as administrator of the estate of Ralph Jones, deceased, to recover damages for the death of plaintiff's intestate, alleged to have been the result of the wrongful conduct of the defendant. From a judgment in favor of the plaintiff, the defendant has prosecuted this appeal.

The question of prime importance, as treated in the oral argument, and also in brief of counsel, relates to the action of the court below in the refusal of the affirmative charge requested by the defendant. Count 11 was the only count upon which plaintiff's case was submitted to the jury, and counsel for defendant insist plaintiff failed to establish the material averments thereof.

A brief reference to the essential features of the evidence is necessary. Plaintiff's intestate was a boy approximately 16 years of age, and had come for a visit to his sister who resided near Gadsden, Ala., on Lookout Mountain, in what is referred to as Bellevue Highlands. On Bellevue Highlands there was an old hotel site, where at one time stood the Bellevue Hotel, long since destroyed. This hotel site is about a mile and a quarter from the city of Gadsden, and elevated about 700 feet. It was uninclosed, but on the south side there was a circular rock wall from about 1/2 to 2 feet wide, and about 3 or 4 feet in height. The hotel grounds sloped upward from the rock wall in the form of a terrace. Just south of this wall and in a few feet thereof was the road, known as the Bellevue Drive, and south of this road was the bluff of the mountain. There were steps leading down this bluff to the city. The road extended along between the foot of the bluff and the wall. The sister of plaintiff's intestate lived a few steps from the hotel site. On the morning of his death her brother, plaintiff's intestate, left her house on his way to Gadsden. He was walking, and the way led across the hotel site. About two hours afterward his dead body was found hanging over the rock wall, which, according to one witness, was at this place about 6 feet from the road above referred to, with his neck across an electric wire, and his left hand on the wire. This wire partially extended over the hotel site and also over the road known as Bellevue Drive.

The witness Ramsey, who seems to have first discovered the body, stated that "the wire the boy was on was about four feet above the road." This roadway had been used by the public for a long number of years, and there was evidence tending to show a number of people visited and passed this place, and that the wire had been down in this condition for several weeks. This wire was uninsulated, or partly so at least, and it is without dispute that there was transmitted over this wire 2,300 volts of electricity generated by the defendant company. This wire extended across the road to a nearby pole, where was attached a transformer, and the current cut down and distributed to consumers on the mountain. One Hart owned and operated a street railway, which ran up this mountain, and near this latter pole was a car shed, where passengers alighted and were taken on the cars. The wire in question ran from the pole near this car shed in a northwesterly direction, toward what is referred to as the Appleton place, then in a southwesterly direction down the mountain side, to a point at Gadsden, about 100 feet east of Twelfth street, and 100 feet north of the Southern Railway to a pole on which had been installed a meter to measure the current of electricity as it passed through said wire up the mountain. There were installed on this pole what are known as cut-out plugs, which, when pulled out of their sockets, disconnected the current. That this wire, in the condition outlined above, was a source of danger to the public, and that so remaining constituted negligence, is not, as we read the briefs of counsel, seriously questioned (Dwight Mfg. Co. v. Word, 200 Ala. 221, 75 So. 979); but counsel for appellant insist the responsibility therefor is not chargeable to it, for the reason that at this latter point, at Gadsden, the defendant company sold and delivered its current to Hart, and that the wires in question belonged to Hart or Hart's company, and were in his possession, custody, and control, and therefore the defendant was not responsible therefor.

The principle of law which defendant seeks to here invoke, established by the great weight of authority, is thus expressed in 20 Corpus Juris, 364:

"Where wiring or other electrical appliances on private premises are owned and controlled by the owner or occupant of such premises, a company which merely furnishes electricity is not responsible for the insulation or condition of such wiring or appliances, and is not liable for injuries caused by their defective condition, to such owner or occupant, or to third persons on such premises. A like rule has been applied to poles and wires of a distributing company to which a generating company sells and delivers electricity for distribution and sale to the patrons of the distributing company. The duty and responsibility of a mere generating company is limited to making a proper connection and delivering the electric current to the purchaser's wire and appliances in a manner which, so far as such delivery is concerned, protects life and property, and there is no duty of inspection to see that the purchaser's wires and appliances are in a safe condition, and kept so."

Among the cases cited by counsel for appellant in support of this insistence, may be noted the following: Fickeisen v. Wheeling Electrical Co., 67 W.Va. 335, 67 S.E. 788, 27 L. R. A. (N. S.) 893; Pressley v. Bloomington & Normal Ry., etc., Co., 271 Ill. 622, 111 N.E. 511; Hoffman v. Leavenworth Light Co., 91 Kan. 450, 138 P. 632, 50 L. R. A. (N. S.) 574; Hill v. Pac. Gas Co., 22 Cal.App. 788, 136 P. 492.

Opposing counsel, however, insist there is evidence tending to show the ownership, possession, and control of this wire by the defendant at the time, and that this was therefore a question for the jury's determination; or, if not so owned by it, there was evidence from which the jury could infer the defendant was in possession and control of the wire, and appropriating the same for the purpose of furnishing current within the principle recognized in Fiquett v. Wade Electric Lt. & P. Co., 206 Ala. 630, 91 So. 357. Counsel for plaintiff, however, also rely upon the principle equally well recognized that, whether the defendant owned or controlled the wire or not, if it had notice of its dangerous condition, and continued to supply the current with knowledge that life and limb might be imperiled by reason of such defect, it would be charged with responsibility for the consequences thereof. In 20 Corpus Juris, 365, this rule of law is expressed as follows:

"Whatever the rule may be in this regard, knowledge of the defective and dangerous condition of a customer's appliances will charge even a mere guarantor and supplier of electricity with liability for consequences, where current is thereafter supplied to such defective and dangerous appliances."

In the case of Hoffman v. Leavenworth Light Co., 91 Kan. 450, 138 P. 632, 50 L. R. A. (N. S.) 574 (referred to as the leading case discussing this question), the court said:

"The furnishing of electric current to distant places is a necessity of modern civic and industrial life, but it is in strict line with the dictates alike of law, morals, and humanitarianism that one who generates and sells this dangerous agency should use proper care to avoid resulting harm. When such power is simply furnished to a responsible party for use in a system of poles, wires, and appliances owned and controlled by such party, and in proper condition to receive the current safely, the furnishing party is not required to maintain inspection, or to see at its peril that such equipment is kept safe, but, so long as not chargeable with knowledge of defect therein, it may justly and reasonably assume that such safety will be maintained; justly and reasonably, because the using company is presumed to act in accordance with prudence and safety until the contrary appears. The fact that in furnishing such power for arclighting the seller undertakes to supply and maintain the necessary lamps and carbons does not change the rule, for such party has the same right as before to assume that the purchaser will act with due care. In order, therefore, to hold the seller liable, it must appear that it continued to furnish and turn on the dangerous current after knowing that the purchaser had permitted the equipment to become defective. From the time of acquiring such knowledge, the seller's contract duty cannot be required, save on condition that such defect be remedied, for otherwise it must thenceforward furnish a dangerous force, knowing that life and limb might be imperiled

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