Alabama Power Co. v. McIntosh

• Citation: 122 So. 677,219 Ala. 546
• Decision Date: 25 April 1929
• Docket Number: 3 Div. 878.
• Parties: ALABAMA POWER CO. v. MCINTOSH.
• Court: Alabama Supreme Court

122 So. 677

219 Ala. 546

ALABAMA POWER CO. v. MCINTOSH.

3 Div. 878.

Supreme Court of Alabama

April 25, 1929

Rehearing Denied June 13, 1929.

Appeal from Circuit Court, Montgomery County; Leon McCord, Judge.

Action for wrongful death by Irene McIntosh against the Alabama Power Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Sayre and Brown, JJ., dissenting.

Steiner Crum & Weil and Rushton, Crenshaw & Rushton, all of Montgomery, for appellant.

Hill Hill, Whiting, Thomas & Rives, of Montgomery, for appellee.

BOULDIN J.

Irene McIntosh sues the Alabama Power Company for wrongful act omission, or negligence causing the death of her minor son, William Lonnie Steavy. The action is under the section of the Homicide Act relating to the death of a minor child. Code, § 5695.

If the father is dead, the right of action is in the mother. Code, § 5694.

Alabama Power Company contracted with J. A. Thomas to clean, wax, and polish a hardwood floor in the defendant's building including a room occupied by some of its office force in the city of Montgomery.

There were electric floor connections for the purpose of operating office fixtures.

The contractor proceeded to do the work of floor cleaning by the use of steel wool and gasoline. According to plaintiff's evidence, while one of his employés was cleaning around one of the floor plates, an electric arc or flash came from the receptacle, igniting the gasoline, spreading rapidly through the fumeladen room. William Steavy, a youth of 16 years of age, and also an employé of Thomas, working on the floor some feet from the origin of the fire, was, before he could be rescued, so burned that he died a few hours later.

Without controversy, he was an invitee to whom the defendant owed the duty of reasonable care to keep the premises safe-the ordinary care which prudent persons exercise for the safety of others under like conditions. Under conditions involved in the use of a dangerous agency, such as electricity, reasonable care requires such precautions as are commonly taken by prudent men of requisite expert knowledge. The fixtures were installed by Montgomery Electric Company, regularly employed to do the wiring for defendant in Montgomery.

In count 4 of the complaint, on which the case was tried, the death of plaintiff's son is alleged to have occurred "as a proximate result and consequence of the negligence of the defendant, in that the defendant negligently allowed said plug, plate or electrical appliance which was improper and unsafe to be embedded in said floor, to be and remain in said improper and unsafe condition in said floor."

The type of floor fixture alleged to have been negligently maintained is shown by the undisputed evidence to be known as "Edison base type receptacle." The use of this type in floors is forbidden by the "National Electrical Code" for interior wiring. Evidence went to the effect that this Code is the standard, is used by all competent wiremen, is called by one witness the "interior wireman's Bible."

In connection with such evidence, the Code, being the expression of the matured judgment and experience of men in that business, becomes evidence of correct appliances for such places, and evidence that the use of fixtures forbidden by it is negligence

The power company insists it was entitled to the affirmative charge upon several grounds:

First, it is argued the evidence failed to show that plaintiff's son was exposed to any greater danger at the time than if any other type of installation had been used. In this type a brass plate, covering the receptacle, is inserted flush with the floor. It has a circular opening to insert the plug, in this case a plug of the screw type. A circular flap, part of the plate or attached thereto by hinges, is made to cover this opening when the plug is removed. In the approved type the opening is covered by a dome-shaped top screwed on. Gaskets are used to further prevent the entry of dust or moisture into the receptacle. Some evidence tends to show it is safer as against accidents of this sort.

The point is made, however, that in this case the floor cleaner simply pulled out the cord and left the lower section of the plug in place so that the flap could not be closed; and that the same course taken with the other fixtures would have left a like exposure to danger. This view ignores a phase of the evidence going to show the flap was not on the plate, had been broken off or removed before, and that a removal of the plug would have increased the danger of gasoline and particles of steel coming into such contact with the live wire as to start a fire.

It is insisted in the next place that the alleged breach of duty was, as a matter of law, not the proximate cause of the injury. "Proximate Cause" has been the theme of much definition and of frequent application by this court as well as others.

Not now repeating, we merely cite some of our cases: Western Railway v. Mutch, 97 Ala. 196, 11 So. 894, 21 L. R. A. 316, 38 Am. St. Rep. 179; Whitman v. M. & O. R. Co., 217 Ala. 70, 114 So. 912; Armstrong v. Montgomery St. Ry. Co., 123 Ala. 233, 26 So. 349; Mobile & O. R. Co. v. Brewing Co., 146 Ala. 407, 41 So. 17; Dye-Washburn Hotel Co. v. Aldridge, 207 Ala. 475, 93 So. 512; Bell Tel., etc., Co. v. Miller, 192 Ala. 350, 68 So. 184; Miles v. Hines, 205 Ala. 86, 87 So. 837; Thompson v. L. & N. R. Co., 91 Ala. 496, 8 So. 406, 11 L. R. A. 146.

The negligence here, if any, consisted in creating or contributing to the creation of a zone of danger to the workmen in the room.

If installing this class of fixtures was not negligent or wanting in due care, it would not become so by the independent negligent act of another converting it into a zone of danger not to be foreseen and avoided.

There is evidence that the special reason for forbidding this fixture in floors is mechanical injury to the appliance by the entry of dust and water; but an ultimate end is also stated to be fire prevention. It may be said the electrician in all internal wiring is charged with the duty to look out for the prevention of fires in all ways which the electric spark may communicate.

Negligence in this regard endangering the building may also be regarded as endangering the persons rightfully employed therein.

There is again some evidence that working around any electric connection with gasoline and steel wool is dangerous. Other evidence, however, goes to the effect that this accident could not have happened if the approved fixture had been installed and maintained intact at the time.

If the use of gasoline and steel wood around this fixture was negligence on the part of the contractor, then the question arises, Was it the efficient intervening cause, or merely concurring negligence in the creation of a danger zone for workmen?

We think, if the jury found negligence in installing and maintaining this fixture, negligence in failing to take due precaution against fire, any negligence of the contractor of the same character, bringing about the immediate danger, may be considered a concurring cause, and not the supervening and sole proximate cause, of the injury, and this without regard to whether such concurring negligence could be anticipated.

In such case there is direct causal connection between the negligence of defendant and the injury. There is a present continuing negligence endangering persons in the building without which the accident would not have occurred. In all cases of concurring negligence, it may be said the one would not have produced the result without the other. If this be a defense, both would escape, although both be in the wrong. A present danger caused by present maintenance of wiring in a...