Alabama Power Co. v. Jackson

• Citation: 232 Ala. 42,166 So. 692
• Decision Date: 19 March 1936
• Docket Number: 3 Div. 163
• Parties: ALABAMA POWER CO. v. JACKSON.
• Court: Supreme Court of Alabama

166 So. 692

232 Ala. 42

ALABAMA POWER CO. v. JACKSON.

3 Div. 163

Supreme Court of Alabama

March 19, 1936

Appeal from Circuit Court, Butler County; A.E. Gamble, Judge.

Action by Theresia Jackson, as administratrix of the estate of Lucile Jackson, deceased, against the Alabama Power Company. From a judgment for plaintiff, defendant appeals. Transferred from Court of Appeals under section 7326, Code 1923.

Reversed and remanded.

Powell & Hamilton, of Greenville, for appellant.

Calvin Poole, of Greenville, for appellee.

THOMAS Justice.

The suit was for wrongful death.

The pleas were the general issue, contributory negligence, and "That at the time alleged in the complaint that a wire of the defendant had fallen in the streets of the City of Greenville defendant alleges that the falling of said wire was caused by a limb which fell from a tree near the highway, or street and near the wires of the defendant, and which fell on the wire of defendant, and that said limb fell by reason of the fact that said limb was in a slightly decayed condition at the place where said limb broke from said tree and such condition was not apparent but was a latent defect in said limb and was not known to the defendant, or its agents, servants or employees, and in the falling of said limb could not have been foreseen by the exercise of reasonable diligence and care on the part of the defendant, and that after said limb had fallen on said wire and the wire had fallen to the ground, that the falling of said wire took place at a brief time before the accident, and that the defendant could not with reasonable diligence before said accident have discovered and repaired the alleged imperfection."

The gravamen of the complaint is "that it was the duty of the defendant to keep and maintain said lines and wires and the poles on which the same were suspended in a safe condition so as not to injure or damage persons or their property while traveling along said public streets; that the defendant so negligently maintained said lines, wires and poles that one of said lines or wires was negligently permitted to fall into and remain in one of said streets *** that said automobile collided with the said wire which was lying in or across the said street and the said automobile in which plaintiff's intestate was riding was overturned and plaintiff's intestate was crushed and injured thereby to the extent that she died from such injuries. And plaintiff alleges that the death of her said intestate was proximately caused by the negligence of the defendant's agents and servants acting in the line and scope of their authority in permitting said wire to fall and remain in said street as aforesaid."

We construe the pleading as charging a lack of discharge of duty in properly maintaining defendant's line and wires in a safe condition for transmission and "so as not to injure or damage persons or their property while traveling" on streets along which that line proceeded.

The rules of conjunctive and disjunctive averments need not be discussed (Tobler v. Pioneer Mining & Mfg. Co., 166 Ala. 482, 52 So. 86; Farmers' & Merchants' Warehouse Co. v. Perry, 218 Ala. 223, 118 So. 406), as they are believed not applicable to the instant pleading.

Several provisions of law as to electrical transmissions have been settled by this court: (1) That telephone and telegraph lines along and on the public highway are improved methods of communication, and are within the scope of the original easement for which the landowner has been compensated. Birmingham Ry. L. & P. Co. v. Smyer, 181 Ala. 121, 61 So. 354, 47 L.R.A. (N.S.) 597, Ann.Cas.1915C, 863; Hobbs v. Long Distance Telephone & Telegraph Co., 147 Ala. 393, 41 So. 1003, 7 L.R.A. (N.S.) 87, 11 Ann.Cas. 461; Southern Bell Telephone Co. v. Francis, 109 Ala. 224, 19 So. 1, 31 L.R.A. 193, 55 Am.St.Rep. 930. (2) That for the purposes in hand, lines for transmission of light and power must be placed in the same category with telephone and telegraph lines. (3) That such transmission companies use the public highways for construction, maintenance, and operation of their transmission lines as a matter of right, as do travelers thereon; the one and original dedication sufficing for each and all as a public use and being within the scope of the original easement for which the original landowner was compensated. Crawford v. Alabama Power Co., 221 Ala. 236, 128 So. 454. And (4) that the right of eminent domain and power transmission lines, as affects the right and duty to trim and fell trees (in public streets of a city) that interfere with or imperil the lines, are within the class and rule that govern telephone and telegraph lines. Alabama Power Co. v. Christian, 216 Ala. 160, 112 So. 763.

It follows, from such rights, that there is a duty in the maintenance of a proper care and inspection of such transmission lines charged with a dangerous agency or power. This question was the subject of discussion in Montgomery Light & Water Power Co. v. Thombs, 204 Ala. 678, 87 So. 205. In Alabama Power Co. v. Jackson, 24 Ala.App. 86, 88, 131 So. 244, 245, it was declared: "We are of the opinion that the right of the power company to erect and operate towers, poles, and wire lines across, along and on public roads, did not excuse it from the exercise of ordinary care to prevent injury to others rightfully using the highway, and it was for the jury to determine from all the evidence whether the defendant exercised ordinary care in locating its said line or transmission wires on the side of the road where it was placed."

In Hagerstown & Frederick Railway Company v. State of Maryland, etc., 139 Md. 507, 115 A. 783, 784, 19 A.L.R. 797, 799, 800, 801, the general rule as to liability for maintenance of electric wires over or near a highway, and for injury due to the breaking of the wire by the fall of a tree or limb, is thus stated:

"In the construction and maintenance of electric wires over or near a highway, care must be exercised commensurate with the danger to which they subject people who use the highway. Whether a company using such a wire is bound to provide against the breaking of the wire by the falling of a tree or limb depends on whether the fall of the tree or limb can be foreseen and the dangerous consequence averted by the exercise of reasonable care. If a failure of the company to exercise reasonable care, which is, under the circumstances, a high degree of care, to avert such an occurrence, results in an injury to a person using the highway, the company will be held liable. Commonwealth Pub. Serv. Co. v. Lindsay (1919) 139 Ark. 283, 214 S.W. 9; Warren v. City Electric R. Co. (1905) 141 Mich. 298, 104 N.W. 613, 19 Am.Neg.Rep. 21; Anthony v. Cass County Home Teleph. Co. (1911) 165 Mich. 388, 130 N.W. 659; 5 Spires v. Middlesex & M. Electric Light, H. & P. Co. (1904) 70 N.J.Law 325, 57 A. 424, 16 Am.Neg.Rep. 132."

"The granted prayers of the plaintiff proceeded upon the theory that, if the defendant knew, or by the exercise of reasonable care could have known, of the dangerous condition of the tree in time to have prevented the accident, then it was negligent in failing to have the limb removed or to protect its wires, while the instructions sought by the defendant asserted, and the contentions of the appellant are, (1) that there was no evidence of negligence on its part, and (2) that, as its poles were planted on its own right of way, and the tree in question was on private property, it had no right to remove the limb, and that no negligence can be imputed to it because of its failure to do so, or to adopt any other means of protecting its wires.

"It is said in 20 C.J. 347: 'Electric companies are liable for injuries by electric current resulting from their negligence to a person on a public thoroughfare. Persons or companies operating systems for the transmission of electricity over public highways owe to the public the duty of properly constructing and maintaining their poles and wires, and of exercising for the protection of all persons legally using the highways the high degree of care commensurate with the danger.'

"And in 9 R.C.L. p. 1200, speaking of the care to be exercised, it is said: 'The degree of care which will satisfy this requirement varies, of course, with the danger which will be incurred by negligence, and must be commensurate with the danger involved, and, according to numerous decisions, where the wires maintained by a company are designed to carry a strong and powerful current of electricity, so that persons coming in contact with them are certain to be seriously injured, if not killed, the law imposes upon the company the duty of exercising the utmost care and prudence

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