Atlantic Coast Line R. Co. v. Carroll

• Decision Date: 26 October 1922
• Docket Number: 4 Div. 918.
• Parties: ATLANTIC COAST LINE R. CO v. CARROLL.
• Court: Alabama Supreme Court

94 So. 820

208 Ala. 361

ATLANTIC COAST LINE R. CO v. CARROLL.

4 Div. 918.

Supreme Court of Alabama

October 26, 1922

Appeal from Circuit Court, Dale County; J. S. Williams, Judge.

Action by Yancy Carroll, as administratrix of the estate of Clifton Carroll, deceased, against the Atlantic Coast Line Railroad and others. From a judgment for plaintiff, the named defendant appeals. Affirmed.

A railroad company, stringing an electric light wire on a post to brace or protect which a guy wire and post owned by a city furnishing electric current to the railroad as maintained by the city for the joint benefit and protection of the wires of both, held obligated to exercise at least reasonable care to maintain the guy wire and post, as well as the light wire, in a safe condition.

Count 1 of the complaint, on which the case was tried, alleges, in substance, that Clifton Carroll, while passing along the sidewalk in the city of Ozark, came in contact with a guy wire which had become charged with electricity, and was killed; that the defendant city of Ozark was operating an electric light and power plant, of which defendant Dowling was superintendent, with wires strung along the streets on poles; that the defendant railroad company put up and owned the electric wires leading from its depot to the wires of the city and connecting therewith, and from which it receives its current; that the railroad's wires were attached to a tall pole near its depot; that there was also attached to this tall pole, below the point at which the charged wires were attached, a guy wire, leading from the tall pole to a shorter pole sunk in the ground.

It is averred that the defendant Atlantic Coast Line Railroad Company "was in duty bound to see that its wire was kept in proper condition for the receiving and conducting of the electric current from the city of Ozark's wires to its place of business"; that "the Atlantic Coast Line Railroad Company had dominion and control over its said wire"; that "it was the duty of the defendants severally and separately or of their agents acting for them *** to keep said wire *** and said guy wire in proper condition for the safe conveyance of the electric current from the city's wires over said wire to said depot of the defendant, the Atlantic Coast Line Railroad Company, so that the general public, including plaintiff's intestate might pass along the avenue and sidewalk in the said city of Ozark in safety."

It is alleged that the Atlantic Coast Line Railroad Company negligently permitted its wire on the taller pole to become loose and dangle, or to become attached at a lower point on said pole than the place at which it was originally attached and to become uninsulated; that the short or guy post had rotted off at the ground, and was by some one moved to about the outer edge of the sidewalk, permitting the guy wire to become loose and dangling, and become in contact with the metal of the railroad company's wires; and that plaintiff's intestate, passing along said sidewalk, came in contact with the thus charged guy wire, and was killed.

The summons to the appellant read as follows:

"The State of Alabama, Dale County. Circuit Court. To Any Sheriff of the State of Alabama-Greeting:

"You are hereby commanded to summons the Atlantic Coast Line Railroad Company, a corporation, defendant, to answer, plead, or demur to the complaint, as amended, filed in the cause of Yancey Carroll, Administratrix of the Estate of Clifton Carroll, Deceased, Plaintiff, v. the City of Ozark, a Municipal Corporation, et al., Defendants; said amended complaint being filed on October 19, 1916, within the time required by law.

"Issued this the 16th day of July, 1917.

"B. P. Garner, Clerk."

B. C. Dowling, testifying as a witness, after stating that when the lighting wires into the depot were put up the second time they were put on the pole below the guy wire, and were put up under his direction, but without any direction or authority from the city of Ozark, was asked this question by the attorney for the City of Ozark:

"Did you act for the city of Ozark in putting that wire up, or did you act on your own private initiative?"

Over objection of the defendant Atlantic Coast Line Railroad Company, the witness was permitted to answer:

"I did it just as an accommodation to the Atlantic Coast Line Railroad Company."

The appellant excepted to the following portion of the court's oral charge:

"So far as this guy post is concerned, if the guy wire was attached to the post in question, the post in question being used by the Atlantic Coast Line Railroad Company for its use and purpose, then the duty rested upon the Atlantic Coast Line Railroad Company to see that that guy post and guy wire was properly maintained and properly kept in such a way as not be dangerous to the public traveling at that point."

Exception being taken, the court stated:

"I said this: That if this jury is reasonably satisfied from this evidence that the Atlantic Coast Line Railroad Company used that post for its purposes and that if the guy wire was attached to it and became a part of it, then there is a joint duty on the part of the Atlantic Coast Line Railroad Company and the city of Ozark to properly maintain and keep that post."

To this the appellant excepted.

The court gave the general affirmative charge for defendant B. C. Dowling. The jury returned a verdict for the plaintiff against the city of Ozark and Atlantic Coast Line Railroad. There was judgment accordingly, from which Atlantic Coast Line Railroad Company prosecutes this appeal.

John R. Tyson and Arrington & Arrington, all of Montgomery, for appellant.

J. J. Speight and Lee & Tompkins, all of Dothan, for appellee.

ANDERSON C.J.

The summons as served upon this appellant does not entirely conform to the form prescribed by section 5299 of the Code of 1907, as it does not direct the defendant "to appear at the next term of the circuit court, to be held for said county at the place of holding same." It does, however, direct the defendant to appear and answer the cause there described, and shows that it was pending in the Dale circuit court, and the failure to fix the time for appearance and answer did not render the summons subject to the appellant's motion to quash the same, as the law fixes the time within which the defendant must appear. Davis v. McCary and Dean, 100 Ala. 545, 13 So. 665.

Count 1 of the complaint, while quite verbose and prolix, was not subject to any of the grounds of demurrer interposed thereto and argued in brief of co...