Alabama Power Co. v. Berry

• Decision Date: 12 October 1950
• Docket Number: 6 Div. 959
• Citation: 48 So.2d 231,254 Ala. 228
• Parties: ALABAMA POWER CO. v. BERRY.
• Court: Alabama Supreme Court

Page 231

48 So.2d 231

254 Ala. 228

ALABAMA POWER CO. v. BERRY.

6 Div. 959.

Supreme Court of Alabama.

Oct. 12, 1950.

J. A. Posey, of Haleyville, and Martin, Turner & McWhorter and J. C. Blakey, of Birmingham, for appellant.

Weaver & Johnson, of Haleyville, for appellee.

The complainant alleges that on October 1, 1942, when plaintiff was eleven years old, defendant owned and maintained a high-voltage electric power transmission line over and across the lands of Abe Berry, the father of plaintiff, near Sardis Church, Winston County, Alabama; that on said date defendant negligently allowed a wire connected to one of its high-voltage electric power transmission lines to dangle or hang down from said high-voltage electric power transmission line to the ground, and said dangling wire was charged with high-voltage electricity dangerous to the lives of human beings; that on said date plaintiff went upon said lands of his father for the purpose of cutting corn tops, pursuant to instructions from his father; that while plaintiff was lawfully upon his father's said land, he accidentally and unknowingly walked against or stepped upon said wire which was dangling or hanging from defendant's said high-voltage electric power transmission line, and which was then and there charged with high-voltage electricity dangerous to the lives of human beings; that as a result, plaintiff was knocked unconscious and was injured in the manner detailed; and that all of said injuries and damages were the proximate result of the defendant's negligence in allowing said wire to dangle or hang down from its said high-voltage electric power transmission line or lines.

SIMPSON, Justice.

The judgment here reviewed is one awarding damages to S. L. Berry, a minor who sues by his father as next friend, for serious and painful injuries alleged to have been caused by accidentally and unknowingly walking against or stepping upon a wire which was dangling or hanging down from defendant's high-voltage electric power transmission line, while he was cutting corn tops in his father's cornfield. Suit was filed some six years after the alleged occurrence.

The refusal to the defendant of the affirmative charge constitutes the vital assignment of error and is the question of primary importance.

Short of this principal question are two preliminary propositions, regarded as untenable, which will be disposed of first; viz., whether the transcript of the evidence should be stricken on motion of appellee and whether the count was subject to the grounds of demurrer interposed.

The appellee moves to strike the transcript because not filed with the clerk within ninety days after the date of trial or the ruling on the motion for a new trial, as required by Code 1940, Title 7, § 827(4). The delay in filing the transcript was occasioned by the serious illness of the trial judge after one continuance by him of the hearing on the motion for new trial, which rendered him unable to give the matter further attention, whereby, when he did recover and consider the motion, there had been a discontinuance. The local attorney of appellant thought he had an agreement with opposing counsel to avert such a discontinuance, but if so, the agreement was not in writing, as required, Circuit Court Rule 14, was therefore not binding, and the judge on the hearing of the motion properly declared that there had been a discontinuance and that he was without jurisdiction to rule on it. Stallings v. Clark, 218 Ala. 31, 117 So. 467; Richards v. Williams, 231 Ala. 450, 165 So. 820.

The transcript was filed the same day of this order of discontinuance and one argument against the motion to strike is that the statute only requires the filing of the transcript within ninety days after the date of the trial 'or date of the trial court's ruling on motion for new trial' (emphasis supplied); that hence this statute was complied with since the court did rule on the motion by declaring a discontinuance. We are not prepared to say whether this section of the law abolishing bills of exceptions should be so construed or whether it should be construed as meaning 'within ninety days from the day on which the judgment, or the order granting or refusing motion for new trial, was entered,' as provided in the old law relative to bills of exceptions. § 822, Title 7, Code. Perhaps the latter, and if so, the transcript was filed too late. This uncertainty in the statute had heretofore escaped our notice, but we are not disposed to undertake to rationalize the meaning of the section. We prefer to rest decision on Supreme Court Rule 48, Code 1940, Tit. 7 Appendix, adopted to implement the statute in an endeavor to make it workable. No objections as to the correctness of the transcript were filed and no material omissions or defects have been pointed out by appellee and the trial judge has approved it as correct. No lack of diligence on the part of appellant is shown or contended for by appellee, so under the rule we think the ends of justice require that we invoke our discretion and consider it. The motion to strike will, therefore, be overruled. Jones v. Mullin, 251 Ala. 501, 503, 38 So.2d 281; Morgan Plan Co. v. Accounts Supervision Co., 34 Ala.App. 457, 459, 41 So.2d 424, certiorari denied, 252 Ala. 473, 41 So.2d 428; Supreme Court Rule 48.

The other secondary matter relates to the sufficiency of the count (Count 1) on which recovery was rested as against the asserted grounds of demurrer. The argument is advanced that the count is defective in not sufficiently describing the place of injury or that the wire with which the appellee was alleged to have come in contact was owned or maintained by appellant or that the appellant caused the condition or that appellant had any notice or the length of notice of this dangerous condition. The argument is not well taken.

The place of accident is manifestly sufficiently alleged as being on the lands of the plaintiff's father near Sardis Church in Winston County, Alamaba Power Co. v. Owens, 236 Ala. 96, 181 So. 283; Blakeney v. Alabama Power Co., 222 Ala. 394, 133 So. 16.

And, the count meets the necessary requirements of the well-settled rule that the duty of care being shown, a general averment of negligence is sufficient. It is the duty of the electric company to use that degree of care commensurate with the risk and danger involved and the public has the right to assume that its high-voltage wires will not be negligently maintained. And if as alleged, it did negligenty allow the wire to dangle and as a proximate result thereof the defendant was injured as described, liability would ensue. Birmingham Electric Co. v. Lawson, 239 Ala. 236, 194 So. 659; Alabama Power Co. v. Owens, supra; Montgomery Light & Water Co. v. Thombs, 204 Ala. 678, 87 So. 205. We hold the count good against the demurrer.

The vital question, as observed, relates to the ruling of the trial court in refusing the affirmative charge requested by the defendant. On a painstaking consideration of the record, in connection with a studious review of the governing authorities, the court has become convinced that it was error to refuse the charge.

The negligence charged in the count is that 'the defendant negligently allowed a wire connected to one of its high-voltage electric power transmission lines to dangle or hang down from said high-voltage electric power transmission line to the ground, and said dangling wire was charged with high voltage electricity dangerous to the lives of human beings' and that plaintiff accidentally and unknowingly walked against or stepped upon said wire which resulted in his catalogued injuries and which were the proximate result of the negligence aforesaid.

There was but slight dispute in the material facts produced on trial: In the late afternoon between four and six o'clock September 1, 1942, plaintiff, then eleven years of age, and his brother, thirteen years of age, were cutting corn tops in their father's cornfield in a rural section of Winston County over which appellant's transmission line ran. The line had been there for many years and was suspended approximately fifty feet above the surface of the ground and, according to the testimony of the two boys, the only ones present when the accident occurred, they were cutting the corn about seventy-five feet up the hill from the point where the transmission line crossed the field. The plaintiff doesn't know what occurred nor did he recall touching or coming in contact with any wire and knew nothing until he regained consciousness in a hospital some time later. But his brother, Hollis, saw a blaze of fire come from the power line down to the ground where plaintiff was and then saw plaintiff lying on the ground. An inspection of the area later showed that scattered about indiscriminately all through the cornfield among the stalks and up to the proximity of the garden of the father of the plaintiff was a considerable amount of small fine wire which resembled in appearance the kind that goes in the coil of a T-model Ford. Although the two boys had been in the field all day, according to their testimony they did not see this wire and saw no wire hanging from the transmission line some seventy-five feet distant. No other witness was produced who had ever seen any of this scattered wire before the accident and there was no testimony as to how it got there, nor did anyone ever see any wire hanging from the transmission line at any time. Obviously, this foreign wire was not part of the defendant's equipment. There was testimony that some years previously the power company had an inspector who checked the line periodically, but no one had seen anyone inspecting the line recently. It is not shown whether the transmission line was insulated or uninsulated, nor was there any evidence that it was improperly located or constructed. The basis upon which negligence seems to be claimed was lack of reasonable inspection,...