Alabama Power Co. v. Byars, 6 Div. 254.

• Decision Date: 12 May 1938
• Docket Number: 6 Div. 254.
• Parties: ALABAMA POWER CO. v. BYARS ET AL.
• Court: Alabama Supreme Court

181 So. 270

236 Ala. 79

ALABAMA POWER CO. v. BYARS ET AL.

6 Div. 254.

Supreme Court of Alabama

May 12, 1938

Appeal from Circuit Court, Pickens County; J. Russell McElroy Judge.

Suit for damages for wrongful death by Mamie Byars and others, for the use of New Amsterdam Casualty Company, against the Alabama Power Company. From a judgment for plaintiffs defendant appeals.

Affirmed.

McQueen McQueen, & McQueen, of Tuscaloosa, D. D. Patton, of Carrollton, and Martin, Turner & McWhorter and J. C. Blakey all of Birmingham, for appellant.

V. W. Elmore, of Gordo, and Jones & Dominick and A. Bruce McEachin, all of Tuscaloosa, for appellees.

KNIGHT Justice.

This is the second appeal in this cause. The opinion of the court on first appeal is found in Byars v. Alabama Power Co., 233 Ala. 533, 172 So. 621.

The principles of law applicable to the case may be found fully stated in our former opinion.

The facts developed on the second trial are not materially different from the facts found in the record on the first appeal. Without restating them, we deem it sufficient, for the purpose of a decision of this case, to refer to the opinion on the former appeal, where a full statement of the evidence may be found.

However, the appellant insists that the evidence upon the second trial was "so substantially and materially different from that introduced upon the first trial" that it was entitled to the general affirmative charge, which it duly requested in writing. The appellant's contention in this respect is that on the second trial there was "no evidence" having any probative value whatever that appellant was in any way connected with the installation or maintenance of the electric wires which are alleged to have been the offending agency which caused Byars' death. In this appellant is mistaken. The witness Sam Davis, who alone testified to the ownership of the wires, and who was the general manager of the Tuscaloosa Cotton Seed Oil Company at Gordo, in Pickens county, Ala., testified on his direct examination: "These wires from the post, leading across the shed where Mr. Byars was killed, and the post and the wires which were connected to the post out from the building, were installed and owned and operated by the Alabama Power Company. Alabama Power Company owns the wires from the post to and up to where it was joined to the side of the gin house. These wires were furnished by the Power Company."

On cross-examination by the defendant, this witness Davis testified: "I became Manager of the Gordo Gin of the Tuscaloosa Cotton Seed Oil Company in 1930. I never worked there prior to that time. The first time I worked there was in 1930. The wires that ran from the pole to the side of the gin building that I testified about, they were installed there and were there at the time I went to work there. The wires had already been put in at the time I went to work there. * * * I don't know how far it was from where the wires attached to the building out to the service pole to which the wires ran. It was thirty or forty feet. I do not know when those wires were installed. I do not know who put them up. I don't know who furnished the wire. That was all done before I went to the Gordo Gin plant * * * ."

Conceding that there was a conflict in the testimony of the witness Sam Davis given on his direct examination and that given by him on cross-examination, this fact would not warrant the court in disregarding the testimony of the witness. In such case it was for the jury to determine which statement it would believe. Hines, Director General, v. Miniard, 208 Ala. 176, 94 So. 302; Jones v. Bell, 201 Ala. 336, 77 So. 998; McMillan v. Aiken, 205 Ala. 35, 88 So. 135.

It is next insisted that the evidence on the second trial was materially different from that on the first trial, in that the evidence on the last trial showed that a new tin roof had been put on the gin house, and that the tin sheets extended downward some 5 inches more than the old roof. That the tin on the old roof was some 13 inches above the wiring, whereas on the new roof, the tin was only about 8 inches above the wires. That this new roof was put on the building by the Tuscaloosa Cotton Oil Company, and the defendant had no connection with the construction of the new roof. It appears however, that the new roof was put on...