Birmingham Amusements, Inc. v. Turner

• Citation: 221 Ala. 242,128 So. 211
• Decision Date: 27 March 1930
• Docket Number: 6 Div. 522.
• Parties: BIRMINGHAM AMUSEMENTS, INC., v. TURNER.
• Court: Alabama Supreme Court

128 So. 211

221 Ala. 242

BIRMINGHAM AMUSEMENTS, INC., v. TURNER.

6 Div. 522.

Supreme Court of Alabama

March 27, 1930

Rehearing Denied May 22, 1930.

Appeal from Circuit Court, Jefferson County; Richard V. Evans Judge.

Action for damages for wrongful death by Earle E. Turner, as administrator of the estate of Earle E. Turner, Jr., against the Birmingham Amusements, Inc. From a judgment for plaintiff, defendant appeals.

Affirmed.

The refusal of requested instructions covered by those given is not error.

Count A is as follows:

"The plaintiff claims of the defendant the sum of One Hundred Thousand ($100,000.00) Dollars, as damages, for that on, to-wit: the 10th day of May, 1928, the defendant was in possession of that certain tract of land known and described as East Lake Park in the City of Birmingham, Alabama, and was then and there engaged in business operating said tract of land as a public amusement park with divers and sundry amusement enterprises in connection therewith; and plaintiff further avers that then and there the plaintiff's intestate, Earle E Turner, Jr., who was then and there a boy seven years of age was invited to be and play around in said East Lake Park; and plaintiff further avers that the defendant, or some officer, servant, agent or employee of the defendant while acting in line with and within the scope of his or their employment as such, then and there caused, allowed or permitted a wire, or other metallic conductor of electricity then and there dangerously charged with electricity, to be and remain at or near to the surface of the ground and then and there within the reach of a small boy, such as plaintiff's intestate; and plaintiff further avers that said wire or metallic conductor of electricity so charged with electricity, as aforesaid, was wholly or partially uninsulated and was dangerous to the life of human beings coming in contact therewith; plaintiff further avers that said wire or metallic conductor of electricity so charged with electricity, as aforesaid, was so situated that the defendant, or some officer, servant, agent or employee of the defendant while acting in line with and within the scope of his or their employment as such, in the exercise of due care, knew that children playing in and around said park would probably come in contact therewith, or in the exercise of due care the defendant, or some officer, servant, agent or employee of the defendant, while acting in line with and within the scope of his or their employment as such, should have known that children playing in said park would probably come in contact therewith; plaintiff further avers that then and there his intestate, Earle E. Turner, Jr., while in said East Lake Park at the invitation of the defendant, as aforesaid, did come in contact with said wire or metallic conductor of electricity so charged with electricity, as aforesaid, and was thereby killed.

"And plaintiff avers that the death of his intestate was proximately caused by the negligence of the defendant, or some officer, servant, agent or employee of the defendant while acting in line with and within the scope of his employment as such, in this: The defendant, or some officer, servant, agent or employee of the defendant while acting in line with and within the scope of his or their employment as such, negligently caused, negligently allowed or negligently permitted a wire or metallic conductor of electricity dangerously charged with electricity and dangerous to the life of a human being to be and remain so near to the surface of the ground that it was within the reach of a small boy at the time and place aforesaid."

Defendant excepted to the following portion of the oral charge:

"Now, when you deal with what is known as a dangerous instrumentality or dangerous agency, such as electricity, and dealing with a highly dangerous instrumentality, of that kind, it is still due care, but you have a given condition, a dangerous instrumentality, electricity, but you must exercise that due care and reasonable prudence commensurate with the risk of injury involved in that dangerous situation or instrumentality, to-wit: electricity."

The remarks of counsel for plaintiff in argument to the jury to which defendant objected were as follows:

"We know not what this little boy would have been. Lindberg was a little ordinary chap when he was about that age."

The refused charges made the basis of assignments 45, 48, and 51 are as follows:

(45) "I charge you, gentlemen, if you are reasonably satisfied from the evidence that defendant did not know that children would likely or probably put their hands down through the aperture opening to the third rail, then, gentlemen, you cannot find a verdict for plaintiff."

(48) "The court charges the jury that the negligence as charged in this case is based solely on the defendant's causing, permitting or allowing a wire charged with electricity and dangerous to life to be and remain within reach of a small boy; and I charge you further, if you are reasonably satisfied from the evidence that at the time of the child's death the current was 110 volts and that under all the ordinary circumstances, known to this defendant to exist at said time, said charge was not dangerous to life, then, gentlemen, you cannot find a verdict for plaintiff."

(51) "I charge you, gentlemen, that if you are reasonably satisfied from the evidence in this case that said third rail was charged with only 110 volts at the time of the accident, and that under all the circumstances and surroundings known to defendant to exist at said place such charge was not dangerous to life, then, gentlemen, you cannot find a verdict for plaintiff."

Charge V, refused to defendant, is as follows:

"V. A child of tender years, going to a place where it is not invited to go and using or touching parts of machinery or equipment it is not invited to touch, may be a trespasser, and if you are reasonably satisfied from the evidence in this case that the deceased child was such at the time and place of the accident, then, gentlemen, you cannot find a verdict for plaintiff."

p>Page B. F. Smith and Coleman, Coleman, Spain & Stewart, all of Birmingham, for appellant.

Fort, Beddow & Ray and G. Ernest Jones, all of Birmingham, for appellee.

GARDNER J.

The suit is under the homicide statute to recover damages for the death of Earle E. Turner, Jr., a boy under eight years of age, who was killed in East Lake Park, Birmingham, Ala., on May 10, 1928, by contact with an electric current in the "third rail" of a miniature railroad operated by defendant amusement company. There was judgment for the plaintiff, from which defendant appeals.

The first question presented relates to the action of the court in overruling the demurrer to the complaint, count A. We find no error in this ruling. "Electricity is an illusive, in a degree uncontrollable, and a dangerous element. The character and nature of the hazard to which, if unguarded, it subjects persons and property, suggest a measure of caution and diligence commensurate with the danger its employment necessarily calls into existence." Birmingham Rwy. Lt. & P. Co. v. Canfield, 177 Ala. 422, 59 So. 217. See, also, Dwight Mfg. Co. v. Word, 200 Ala. 221, 75 So. 979. "The fact that an inherently dangerous agency or instrumentality is installed on a proprietor's private premises by an independent contractor does not absolve the proprietor from the duty to exercise reasonable care and diligence to conserve the safety of third persons, especially children, who go upon the premises, thus made perilous ***. An element of this duty is the exaction that a proprietor shall exercise reasonable care and diligence to inspect his premises, with a view to becoming sufficiently advised to meet this duty's demand toward those who it is reasonable to expect will enter the premises." Golson v. W. F. Covington Mfg. Co., 205 Ala. 226, 87 So. 439, 441.

Count A is not rested upon the doctrine of the "attractive nuisance" cases, but upon the general rule of liability as found quoted in Thompson v. Alexander City Cotton Mills Co., 190 Ala. 184, 67 So. 407, 410, Ann. Cas. 1917A, 721, as follows:

"That, although the dangerous thing may not be what is termed an 'attractive nuisance' (that is

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