Alabama Power Co. v. Cantrell

Citation507 So.2d 1295
PartiesALABAMA POWER COMPANY v. Brenda Louise CANTRELL. 84-1146.
Decision Date05 September 1986
CourtSupreme Court of Alabama

John P. Scott, Jr., of Balch & Bingham, Birmingham, and Billy L. Church of Church, Trussell & Robinson, Pell City, for appellant.

John W. Haley of Hare, Wynn, Newell & Newton, Birmingham, for appellee.

MADDOX, Justice.

This is a wrongful death case. The plaintiff's husband was killed while attempting to take down a 30-foot television antenna. Decedent and his brother had pulled the antenna loose from the bracket that attached it to the house and were attempting to lower it to the ground. The brother, who was on the roof, let go of the antenna for an unknown reason while the decedent was still holding the base of it. His turning loose caused the antenna to move. The antenna contacted Alabama Power Company's 7,200-volt power line. Decedent was killed almost instantly. Plaintiff claims the line was uninsulated and that the failure of the Power Company to have the line insulated was the proximate cause of decedent's death.

The line was approximately 25 feet above the ground and about 9 feet away from the building where the antenna was attached. The jury returned a verdict in favor of plaintiff for $1 million.

Alabama Power Company (hereinafter "APCo") raises five issues on appeal. First, that the trial court erred by not granting a directed verdict or a judgment notwithstanding the verdict due to APCo's lack of notice of the condition; second, that the trial court erred by not instructing the jury on the issue of notice; third, that the trial court erred in admitting testimony of the defendant's expert that "invaded the province of the jury"; fourth, that the trial court erred by allowing questions to be asked in front of the jury about certain reports compiled by the government relating to the danger of television antennas and power lines--APCo's motion in limine to exclude these reports was denied; and fifth, APCo claims the jury's $1 million verdict for the plaintiff was excessive.

I

First, appellant argues that it had no notice of the situation. Our rule on duty to insulate is well established and was recently restated in the case of Alabama Power Co. v. Brooks, 479 So.2d 1169, 1172 (Ala.1985), from which we quote extensively because the facts of that case are similar to those of the instant case:

"APCo first contends that the trial court committed reversible error by not granting its motion for a directed verdict and later refusing its motion for a judgment notwithstanding the verdict. It argues that it had no duty to insulate its lines in the shop area or to take any precautionary measures with respect thereto because it had no notice, actual or constructive, of any activity on, around, or under the subject lines, which would have indicated that persons might come into contact with them. We disagree. In Bush v. Alabama Power Co., 457 So.2d 350, 353 (Ala.1984), the Court restated the duty of a power company with regard to the use and location of uninsulated electrical lines: 'The duty of an electric company, in conveying a current of high potential, to exercise commensurate care under the circumstances, requires it to insulate its wires, and to use reasonable care to keep the same insulated wherever it may reasonably be anticipated that persons, pursuing business or pleasure, may come in contact therewith. This statement of the rule implies that, in the absence of statute or municipal ordinance, it is not necessary to insulate wires which are so placed that no one could reasonably be expected to come in proximity to them.' Foster v. Alabama Power Company, 395 So.2d 27, 30 (Ala.1981), citing Curtis on the Law of Electricity, § 510. In other words, Alabama Power must either insulate its electrical lines, or locate them in a position where they pose no danger to human life. However, the duty to insulate does not arise absent notice, actual or constructive, that persons may come into contact with the uninsulated wires. Alabama Power Co. v. Alexander, 370 So.2d 252 (Ala.1979)."

The Brooks case involved a drilling rig boom that had been raised into a 7,200-volt electric power line. In the instant case, APCo argues that it had not received notice, either actual or constructive, that persons pursuing business or pleasure might come into contact with the power line.

We cannot agree that APCo had no notice that persons might come into contact with the wire. While no allegation is made and no proof is offered that APCo knew the antenna was to be taken down on this particular day, that is not the only requirement of our rule for notice. The Power Company is under a duty to insulate its wires wherever it may reasonably be anticipated that persons, pursuing business or pleasure, may come in contact therewith. "Where the facts, upon which the existence of a duty depends, are disputed, the factual dispute is for resolution by the jury." Alabama Power Co. v. Alexander, 370 So.2d 252, 254 (Ala.1979). Furthermore, it is also the law that a motion for a directed verdict or for judgment notwithstanding the verdict will not be granted and the case will go to the jury "if the evidence or any reasonable inference arising therefrom, furnishes a mere gleam, glimmer, spark, the least particle, the smallest trace, or a scintilla in support of the theory of the complaint." Alabama Power Co. v. Taylor, 293 Ala. 484, 492, 306 So.2d 236, 243 (1975). We hold that there was sufficient evidence in the instant case to provide this scintilla. The facts, upon which the existence of a duty to insulate depended, were disputed; therefore, the factual dispute was one for the jury to resolve. Some of these facts are: an aluminum antenna, set up on an apartment building and near an uninsulated power line might be reasonably foreseeable as an object which could be energized if it touched the power line; this apartment was on the main street of Springville, Alabama, and both the power line and the antenna could be clearly viewed from the street; there are two electric meters, owned by APCo, on the side of the building a few feet from where the antenna was located, and the jury could have found that to examine the meters it would be necessary for anyone walking from the street to pass by the antenna; testimony was given that APCo meter readers had been seen in the neighborhood; and that the antenna had been in place about two years. These facts were enough to create the scintilla of evidence required by our law to create a jury question and the trial judge properly denied the motion for a directed verdict, and the JNOV.

II

Second, APCo claims that the trial court erred in failing to instruct the jury on the issue of "notice." The trial judge refused to give defendant's requested charge number 19 to the jury, which read:

"I charge you that Alabama Power Company had no duty to insulate its wires unless you are reasonably satisfied from the evidence that the company had actual or constructive notice that the removal of an antenna was in progress in proximity to its power lines. Any notice furnished to an Alabama Power Company employee would not be notice to the Company unless it is with respect to the very matter which the agent is employed to transact for the Company and unless it comes to him while he is so engaged."

A charge almost identical to this was held not to be a proper statement of the law in the Brooks case. There, this Court held that such a charge was properly refused because it would require APCo to have notice of the specific activity engaged in to establish a duty to insulate. The activity that places APCo on notice that persons may come into contact with its lines does not have to be the same activity involved in the injury-producing accident. Brooks, at 1175, citing Alabama Power Co. v. Smith, 273 Ala. 509, 142 So.2d 228 (1962).

In its brief, APCo argues that it has been well established in Alabama that each party is entitled to have proper instructions given by the trial court regarding all issues presented, and that the failure of the court to give a correct charge as to any theory of the case is reversible error, citing Liberty National Life Ins. Co. v. Smith, 356 So.2d 646 (Ala.1978); Jones v. Blackman, 284 Ala. 684, 228 So.2d 1 (1969); Health Maintenance Group of B'ham v. Rutledge, 459 So.2d 889 (Ala.Civ.App.1984); Great Northern Land & Cattle, Inc. v. Firestone, 337 So.2d 1323 (Ala.1976). APCo claims that this obligation of the trial court has particular application to this case, "where the court failed and refused to charge the jury on the requirement of 'notice' to APCo," because, APCo says, "the 'notice' requirement was an essential element in [plaintiff's] case and one on which the jury received absolutely no instruction." APCo claims that it alerted the trial court to this requirement in argument in support of its motion for directed verdict as well as through its requested charge no. 19, quoted above.

APCo concludes, in its brief:

"While the trial court refused Requested Charge No. 19, it made no attempt to charge on 'notice' in its oral charge. In fact, the trial court, in its oral charge, simply charged on the elements of general negligence in an abbreviated fashion. The only charges given on the duty of an electric utility with regard to the installation and maintenance of uninsulated power lines were those given upon request. Even with these limited charges, the trial court still failed and refused to give any charge to the jury on the specific requirement of 'notice' and the requirements of 'notice' to an agent of APCo."

We do not read this Court's previous decisions as requiring notice as the only possible ground on which the duty to insulate arises. In Alabama Power Co. v. Alexander, 370 So.2d 252, 254 (Ala.1979), this Court opined:

"In this case, there is no evidence that Alabama Power Company had...

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