Alabama Power Co. v. Gladden

• Decision Date: 29 June 1940
• Docket Number: 7 Div. 522.
• Parties: ALABAMA POWER CO. v. GLADDEN.
• Court: Alabama Court of Appeals

197 So. 374

29 Ala.App. 438

ALABAMA POWER CO. v. GLADDEN.

7 Div. 522.

Court of Appeals of Alabama

June 29, 1940

Appeal from Circuit Court, DeKalb County; A. E. Hawkins, Judge.

Action for damages for personal injuries by Robert Gladden against the Alabama Power Company. From a judgment for plaintiff defendant appeals.

Affirmed.

C. A. Wolfes, of Fort Payne, and Martin, Turner & McWhorter and J. C. Blakey, all of Birmingham, for appellant.

W. M Beck, C.J. Scott, Isbell & Beck, and Scott & Dawson, all of Fort Payne, for appellee.

SIMPSON Judge.

This is an action for damages for personal injuries alleged as the proximate result of defendant's negligence as charged in Count No. 1 of the complaint. This is the second appeal by defendant (appellant) from a second judgment recovered by the plaintiff. The first appeal (opinion by the Supreme Court) is reported in 237 Ala. 527 187 So. 711, wherein (among other points decided) Count No. 1, upon which recovery proceeded in each trial, was held to be invulnerable against the demurrers interposed. Errors urged upon the appeal are predicated upon the refusal of the trial court to give the general affirmative charges requested by the defendant.

Briefly stated, the evidence for the plaintiff, a young man of twenty-five years of age, was to the effect that, on the morning alleged, the plaintiff, in company with Meyers, a boy companion, each mounted, rode to a public watering place (at a branch), situated alongside and near the public highway which leads from Collinsville, DeKalb County, to Lookout Mountain. Some six feet high from the ground at this place was a telephone line, owned by others than the defendant company, strung also from Collinsville to the mountain. As the two riders approached the branch to water their horses, Meyers touched the telephone wire and the electric shock caused his horse to fall to its knees, and, immediately thereafter, as plaintiff's horse, "went into the wire," it was shocked or knocked to the ground. The plaintiff fell, or was thrown, under his horse, and was severely injured, remaining unconscious for an hour or more, and--according to his testimony--suffered a burn across the muscle of his arm and, perhaps, another about his neck, all with the resulting injuries, permanent and otherwise, as catalogued in the complaint; that his companion in attempting to extricate the plaintiff from his plight, under the stricken horse, put his foot on the wire to push it out of the way and received a burn across the sole of his shoe; that the transmission line of defendant company, which paralleled the highway, a short distance away, had a service line, leading off therefrom, to a "Mr. Keener's house." In tracing the telephone line from the scene of the accident back toward Collinsville, it was discovered, according to witnesses for the plaintiff, that the power line of defendant near Keener's house, which upon its original construction had been strung above the telephone line, was hanging down upon and in contact with the wire of the telephone company. At and around this point on the power company wire, the insulation was hanging ragged, appeared to be worn away, or was otherwise in a state of considerable deterioration. Witnesses for plaintiff further testified that on the same morning, about the time of the accident, the "humming and singing" of the power line attracted their attention and that they then observed the two lines in contact and the condition of the insulation of the power wire, as related, and that Mr. Dobbs, local manager of the defendant company, after coming to the place of the accident, admonished those present "not to touch the wire, that it was hot" (meaning the telephone line with which plaintiff and his horse had come in contact).

The tendency of the defendant's evidence--some of its witnesses testifying that they had, on the same morning, come in contact with the same telephone wire without deleterious effect--was to refute the fact that the wire was electrified by defendant's line, that Dobbs tested the telephone line with a voltometer shortly after the alleged occurrence with a resultant negative showing, and that an immediate check of defendant's system nowhere disclosed any of its lines impinging upon any foreign wires. Dobbs also, after explaining his qualifications, in order to testify on the subject, stated that a ring by a customer on the telephone line would generate from 100 to 125 volts of electricity, which would be sufficient to produce a shock to a person, who was not so susceptible thereto as was a horse.

Under the conflict in the evidence, thus presented, the trial court properly submitted the issue to the jury for consideration, and in the refusal of the court to give the general affirmative charges, requested by defendant, there was no error.

The well established rule of law governing the giving of general affirmative charges, and applicable here, is that, when the evidence is in conflict or when conflicting inferences may reasonably be drawn therefrom, or where it contains conflicting tendencies, a jury question is presented and the general affirmative charge should not be given nor a verdict directed. Jefferson County B. & L. Association v. Weaver, 25 Ala.App. 189, 143 So. 193; Williams v. Webb & Sons, 235 Ala. 433, 179 So. 528, 529, 530. It can also be added that it is further an established rule that, in determining the correctness of the trial court's refusal to give such instructions, the entire evidence must be viewed in its most favorable aspect for the adverse party, against whom they have been requested. Aiken v. McMillan, 213 Ala. 494, 106 So. 150. Or as otherwise expressed, where there is evidence from which a reasonable inference may be drawn adverse to a party, the affirmative charges requested by him are properly refused. Orman v. Scharnagel, 210 Ala. 381, 98 So. 123; Commonwealth Life Ins. Co. v. Clark, 25 Ala.App. 588, 151 So. 604; Norwood Hospital v. Brown, 219 Ala. 445, 122 So. 411. It must be said in this case that there was at least a scintilla, if not more, of evidence to support the plaintiff's complaint and from which a reasonable inference might be drawn adverse to the defendant--necessitating reference of the issue to the jury for decision.

The burden of proof rested on the plaintiff to show culpable negligence on the part of the defendant. It was, therefore, incumbent that he establish by competent evidence (a) a duty owing to him, (b) a breach or failure to perform that duty for which defendant was responsible, and (c) resulting injury caused thereby, 45 C.J. 1163. Applying this rule to the instant facts, it is our opinion that the evidence clearly established culpable negligence on the part of the defendant and resulting injury to the plaintiff.

(a) It was plainly the duty of defendant company to guard against the negligence counted on. McKay & Roche v. Southern Bell T. & T. Co. et al., 111 Ala. 337, 19 So. 695, 31 L.R.A 589, 56 Am.St.Rep. 59; Dwight Mfg. Co. v. Word, 200 Ala. 221, 224, 75 So. 979; Alabama Power Co. v. Cooper, 229 Ala. 318, 156 So. 854; Curtis Law of Electricity, Sec. 510, p. 765. Interesting authorities...