Alabama Power Co. v. Conine

• Decision Date: 28 May 1925
• Docket Number: 5 Div. 905
• Citation: Alabama Power Co. v. Conine, 213 Ala. 228, 104 So. 535 (Ala. 1925)
• Parties: ALABAMA POWER CO. v. CONINE et al.
• Court: Alabama Supreme Court

104 So. 535

213 Ala. 228

ALABAMA POWER CO. v. CONINE et al.

5 Div. 905

Supreme Court of Alabama

May 28, 1925

Appeal from Circuit Court, Tallapoosa County; S.L. Brewer, Judge.

Action for damages by Alberta G. Conine, administratrix, and J.J Langley, administrator of the estate of W.M. Conine deceased, against the Alabama Power Company. Judgment for plaintiffs, and defendant appeals. Reversed and remanded.

See also, 207 Ala. 435, 93 So. 22; 210 Ala. 320, 97 So. 791.

Denson & Denson, of Opelika, J. Sanford Mullins, of Alexander City, and Martin, Thompson, Foster & Turner, of Birmingham, for appellant.

Jas. W. Strother, of Dadeville, and Barnes & Walker, of Opelika, for appellees.

ANDERSON C.J.

This is the third appeal in this case. Ala. Power Co. v. Conine, 210 Ala. 320, 97 So. 791; Id., 207 Ala. 435, 93 So. 22. The present trial was under counts 1, 2, 9, and 10. Counts 1 and 2 charge negligence to the agents or servants of the defendant, without designating or naming said agent or servant. Counts 9 and 10, which seem to have been added by amendment after a good part of the evidence was taken, charge negligence to one J.M. Barry. Upon the first appeal, this court held that the defendant was entitled to the general charge as to Barry, as there was no proof of the agency of said Barry. The plaintiff upon the instant trial introduced answers to interrogatories previously propounded to the defendant, to the effect that Barry and not Rogers was in "charge of the management of the business of the defendant at Camp Hill on the 9th day of August, 1919." This may all be true, yet the fact stands out by the undisputed evidence that Rogers had the superintendence and supervision of the local plant at the time of his death, and had had for some time, and which fact is compatible with the general management of Barry, whose duties and authority may have extended to plants and territory other than Camp Hill. From aught appearing, his duties did not require his presence at Camp Hill all the time and there is nothing in the record to indicate that he had any reason to apprehend or anticipate the occurrence which resulted in causing the wires to become disconnected and fall to the street. It cannot be properly held that his absence from Camp Hill at the time was negligence, especially in view of the fact that Rogers, the local man, was left on the scene. Moreover, had Barry been in Camp Hill, he may not have anticipated the fire and damage to the wire, and may not have found out that the charged wire was down until after the death of Rogers and Conine. Counts 9 and 10 were not only subject to demurrer, but there was absolutely no proof of any actionable negligence against the defendant growing out of the conduct of Barry, and the defendant was entitled to the general charge as to these two counts.

As held by this court upon the second appeal (210 Ala. 320, 97 So. 791), it was a question for the jury as to whether or not Rogers was guilty of simple negligence which proximately caused the death of the intestate. We also held that it was a question for the jury as to whether Conine or Rogers seized the wire first, or whether they did so contemporaneously. It is insisted upon this appeal that the undisputed evidence shows that Rogers seized it first and was shocked, and staggering, and Conine seized it to rescue him and was conscious of the danger when doing so. We still think this was a question for the jury and that the testimony of Pepper is not such as to be entirely reconciled with those witnesses who testified positively that Conine did not seize the wire until after Rogers had hold of it and was staggering or falling. Pepper said:

"I was right close to Mr. Rogers and just a few feet from Mr. Conine. *** The first thing that attracted my attention was Mr. Rogers made a noise, groaned or grunted or something, and I looked. That attracted my attention and he was staggering right near me, no more than 3 1/2 feet and right at me. I could have reached him. And he just gradually toppled down. And I looked then back, just a few feet, I would say 15 or 20 feet, and Mr. Conine was lying on his back. Mr. Rogers fell entirely to the ground. I did not see Mr. Conine on his back before Mr. Rogers fell to the ground. *** After Mr. Rogers fell, it was just an instant before I saw Mr. Conine on the ground."

True the witness says that he did not see Conine until Rogers fell, but, if he instantly, upon Rogers falling, looked around and saw Conine lying on his back, the jury could infer that Conine fell first or contemporaneously with Rogers and that Conine either...