Alabama Power Co. v. Guy

Citation281 Ala. 583,206 So.2d 594
PartiesALABAMA POWER COMPANY v. Joseph GUY, pro ami. ALABAMA POWER COMPANY v. Criss GUY. I Div. 121, 122.
Decision Date09 November 1967
CourtSupreme Court of Alabama

Inge, Twitty & Duffy, Mobile, and Martin, Balch, Bingham & Hawthorne, Birmingham, for appellant.

Cunningham & Bounds, Mobile, for appellees.

PER CURIAM.

On the afternoon of October 8, 1960, automobiles driven by Mrs. Gladys Petrantis and Johnny Gulley were involved in a collision in the intersection of Washington Avenue and Selma Street in the City of Mobile. The Petrantis automobile was being driven in a northerly direction on Washington Avenue and the Gulley automobile was being driven in a westerly direction on Selma Street. After the collision the Gulley automobile came to rest in the intersection, but the Petrantis automobile continued moving north on Washington Avenue until it came in contact with an electric power pole of the Alabama Power Company situated on the west side of Washington Avenue at a point approximately fifty feet north of the point of the collision of the two vehicles.

Immediately after the Petrantis automobile ran into the power pole, an uninsulated energized electric wire carrying 2400 volts of electricity snapped and fell to the ground at a point on Washington Avenue approximately 150 feet south of the power pole which was struck by the Petrantis automobile. A minute or so later a six-year-old Negro boy, Joseph Guy, while running toward his home from a point near the scene of the collision of the wo vehicles, came into contact with the fallen electric wire and received serious electrical burns.

Joseph Guy, by his next friend and father, Criss Guy, brought suit in the Circuit Court of Mobile County against Johnny Gulley, Mrs. Petrantis and the Alabama Power Company to recover damages for personal injuries sustained as a result of coming into contact with the fallen wire.

Criss Guy brought suit against the same defendants, claiming damages for expenses incurred in the treatment of his son's injuries and for loss of his services.

By agreement the two cases were consolidated and tried together.

There were separate verdicts. The verdict in the Joseph Guy case was in favor of the plaintiff and against the defendants Johnny Gulley and Alabama Power Company in the sum of $30,000. The verdict in the Criss Guy case was in favor of the plaintiff and against the same two defendants in the sum of $5,000. Judgments followed the verdicts.

The Alabama Power Company filed a motion for new trial in each case. Johnny Gulley did not file a motion for new trial. The motions for new trial filed by the Alabama Power Company were overruled. It has perfected an appeal to this court in each case. Johnny Gulley has not appealed and has not seen fit to unite in the appeals of the Alabama Power Company, although summons was duly issued to him in accordance with the provisions of § 804, Title 7, Code 1940.

The two appeals were submitted here on one record by agreement.

The appellant, Alabama Power Company, has made separate assignments of error in the two cases on appeal, but we need treat only the argued assignments of error in the Joseph Guy case because what is said of those assignments of error applies equally to the argued assignments of error in the Criss Guy case.

There were three counts in the amended complaint and the appellant, Alabama Power Company, first argues its assignment of error No. 2 to the effect that the trial court erred in overruling its demurrer to Count One, as last amended, to which we will refer hereafter simply as Count One, which reads in pertinent part as follows:

'Plaintiff claims of the Defendants the sum of TWO HUNDRED THOUSAND AND NO/100 ($200,000.00) DOLLARS, as damages for that heretofore and on, to-wit, October 8, 1960, the Defendant, Johnny Gulley was operating an automobile in a Westwardly direction on Selma Street and the Defendant, Gladys W. Petrantis was operating an automobile in a Northerly direction on Washington Avenue, both of said streets being public streets in the City and County of Mobile, Alabama and on said date at the intersection of said Selma Street and Washington Avenue both of said Defendants so negligently operated their respective motor vehicles as to cause them to collide with each other and the vehicle then and there operated by the Defendant, Gladys W. Petrantis to collide with a power pole located at a point, to-wit, 100 feet North of the Northwest corner of said intersection of said Selma Street and Washington Avenue thereby causing the wires or cables then and there supported by said power pole to break and fall to the ground on and along a public sidewalk in front of, to-wit, 504 Washington Avenue; and Plaintiff, Joseph Guy, who was then and there on said public sidewalk at said place, came in contact with said wires or cables, thereby proximately inflicting on the Plaintiff the following personal injuries; (description of injuries).

'Plaintiff avers that said power pole and the wires or cables it supported, were installed, owned and maintained by the Defendant, Alabama Power Company, and that said wires or cables were then and there charged with dangerous quantities of electricity.

'Plaintiff avers that all of the damages and injuries he suffered were caused as a direct and proximate consequence of the negligence of the Defendants, Johnny Gulley and Gladys W. Petrantis in the negligent operation of their said motor vehicles at said time and place and in the combined and concurring negligence of the Defendant, Alabama Power Company, in the negligent maintenance of its said pole and the said wires or cables it supported in close and dangerous proximity to said public street and in a condition which was known to it or in the exercise of reasonable care should have been known to it to be weak and unsafe, thereby permitting said wires or cables to fall to the ground at said time and place as aforesaid, hence this suit.'

Appellant takes the position with regard to this count that it affirmatively shows lack of proximate cause between the alleged negligence of the appellant and the injuries to the appellee. More particularly, appellant contends that pertinent grounds of demurrer point out that it affirmatively appears from Count One that the negligence of defendants Gulley and Petrantis caused the collision of the Petrantis automobile with appellant's pole, and the allegations show that if any negligence could be charged against appellant, 'such negligence was at most the remote cause of plaintiff's injuries, and one that would not have produced such injuries had it not been for the automobile collision, an independent intervening act, for which appellant is not legally responsible.' Appellant also contends that Count One 'is defective in that it does not allege that appellant was in any way negligent in not discovering that the wire had been broken and was not negligent in leaving the wire in a dangerous position on the ground for an unreasonable length of time.'

The most important and difficult question is that relating to proximate cause.

Appellant cites Morgan v. City of Tuscaloosa, 268 Ala. 493, 108 So.2d 342, where we affirmed a judgment sustaining demurrers to a complaint charging that defendant's sewers were maintained negligently, causing a large puddle of water to form in the streets; that a third party drove his automobile through the water, which splashed on his windshield so that he could not see, and the automobile struck the plaintiff. In that case we said:

'It is true that the law will consider only the proximate cause and not a remote cause where there are two or more causes of injury. (Citing cases.)

'It is also true that where a prior cause merely created the condition or gives rise to the occasion and after the condition has been created an intervening agency produced the injury, the first is not the proximate cause. (Citing cases.)

* * *

* * *

'Our cases also hold that where each count of the complaint shows on its face that some independent agency has intervened and has been the immediate cause of the injury, even though a party is guilty of negligence in the first instance, that party is not responsible and it is the duty of the trial court to sustain a demurrer to the complaint where the complaint and each count thereof shows on its face that an independent agency has intervened and has been the immediate cause of the injury. (Citing cases.)' (268 Ala. 495--496, 108 So.2d 344--345.)

Appellant contends that the invervening independent act of a third person, not to be anticipated by appellant, created the condition of danger, and must be held to be the proximate cause of the injury, and that the complaint on its face shows no concurring negligence on the part of appellant.

Appellee contends that the maintenance of high voltage wires in a weak and unsafe manner by appellant was the creation and maintenance of a dangerous condition and that appellant could reasonably anticipate that wires or cables in such condition might be broken and fall to the ground from any cause and cause injury to a third party. Appellee cites Sullivan v. Alabama Power Co., 246 Ala. 262, 20 So.2d 224, where this statement appears:

'The particular principle of proximate cause here pertinent to defendant's liability is: That a person guilty of negligence should be held responsible for all the consequences which a prudent and experienced man, fully acquainted with all the circumstances which in fact existed, whether they could have been ascertained by reasonable diligence or not, would at the time of the negligent act, have thought reasonably possible to follow, if they had occurred to his mind. * * *

'It is not necessary that the defendant should anticipate the injury in the precise form as resulted. Nor need the particular consequences have been within the contemplation of the parties. * * *

'In line with our decisions on this...

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