Birmingham Elec. Co. v. Lawson

• Decision Date: 14 March 1940
• Docket Number: 6 Div. 636.
• Parties: BIRMINGHAM ELECTRIC CO. v. LAWSON.
• Court: Alabama Supreme Court

194 So. 659

239 Ala. 236

BIRMINGHAM ELECTRIC CO. v. LAWSON.

6 Div. 636.

Supreme Court of Alabama

March 14, 1940

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

Action for damages for personal injuries by Earl Lawson against Birmingham Electric Company. From a judgment for plaintiff defendant appeals. Transferred from Court of Appeals under Code 1923, § 7326.

Affirmed.

Lange Simpson, Brantley & Robinson, of Birmingham, for appellant.

Harsh, Harsh & Hare, of Birmingham, and J. M. Pennington, of Jasper, for appellee.

BROWN Justice.

This is an action on the case by a guest traveling with the owner in a private automobile on a public highway against a public utility corporation to recover damages resulting from injuries to plaintiff's person, in consequence of the automobile coming in contact with one of the defendant's poles maintained on the right of way of said highway as support for the defendant's line of electric wires.

The complaint, as the case went to trial, consists of counts A and B; the first charging simple negligence in placing and maintaining said pole; and the other charges wantonness in so placing and maintaining said pole.

The plea was the general issue, pleaded in short by consent, "with leave to give in evidence any matter which if well pleaded, would be admissible in defense of the action, to have effect as if so pleaded."

Count B, at the close of the evidence, as the parties state in brief, was stricken or withdrawn and the case went to the jury on the issues formed by count A and the defendant's plea.

The trial resulted in a verdict and judgment for the plaintiff from which the defendant has appealed.

Defendant's demurrer interposed to count A, grounds M and N, take the point that "there is no sufficient allegation showing that the defendant so placed or maintained said pole as to cause it to unnecessarily or unreasonably obstruct the ordinary use of said highway by the public."

The appellant insists that said grounds of demurrer were well taken to said count and that the court erred in overruling the demurrer.

The pertinent averments of the count are "that while said automobile was being driven around a curve in said Highway, near towit Thomas, in Jefferson County, Alabama, same ran into upon or against a pole towit an electric light pole maintained by defendant, which said pole was located in close and dangerous proximity to the travelled portion of said public highway, and was within the right of way of said highway, and plaintiff further avers that the maintenance of said pole at said point within the limits of the public road and adjacent to the travelled portion thereof rendered the said highway dangerous for use by the plaintiff and by the public.

"Plaintiff further avers that the defendant negligently caused or negligently caused or negligently allowed said pole to be or remain in dangerous proximity to the travelled portion of said highway on said occasion and as a proximate consequence of said negligence plaintiff suffered said injuries and damage." Section 7197 of the Code 1923, conferred "the right and authority" on the defendant "to erect and operate...