Birmingham Ry., Light & Power Co. v. Murphy

• Decision Date: 23 November 1911
• Citation: Birmingham Ry., Light & Power Co. v. Murphy, 2 Ala.App. 588, 56 So. 817 (Ala. App. 1911)
• Parties: BIRMINGHAM RY., LIGHT & POWER CO. v. MURPHY.
• Court: Alabama Court of Appeals

56 So. 817

2 Ala.App. 588

BIRMINGHAM RY., LIGHT & POWER CO. v. MURPHY.

Court of Appeals of Alabama

November 23, 1911

Appeal from City Court of Birmingham; C. W. Ferguson, Judge.

Action by Willie Murphy, a minor, against the Birmingham Railway Light & Power Company.From a judgment for plaintiffdefendant appeals.Affirmed.

Tillman, Bradley & Morrow and Charles E. Rice for appellant.

Bowman, Harsh & Beddow, for appellee.

DE GRAFFENRIED, J.

The appellant owns and operates the street railway system of the city of Birmingham, and uses electricity as its motive power.The evidence tended to show that a wire, charged with electricity by contact with the trolley wire by which the cars were run, hung down over one of the streets in a residence portion of the city, either touching the ground or in close proximity to it, and the appellee, a child of five years of age, came in contact with it, and was injured.The jury was authorized to infer from the testimony of appellee that the injury was painful and serious, but the testimony of appellant tended to show that the injury was slight.

The evidence, without conflict, showed that the wire was hanging over the street, as above stated, on Saturday, the 26th day of June, and that on that day a boy was burned by coming in contact with it, and that it remained in that position until Tuesday, the 29th day of June, when the appellee came in contact with it, and was injured, as above stated.The evidence further showed, without conflict, that about 8 o'clock on Monday morning, the 28th of June, the father of the boy who was burned on the previous Saturday called at the office of appellant, in the city of Birmingham, and seeing a lady in the business portion of the office, whom the evidence tended to show was an employé of appellant, told her that he desired to make a report to appellant about the condition of the wire, and that she directed him to see a man in the rear part of the business office and make the report to him; that he did as directed, and reported the condition of the wire to a man engaged at the time in writing, and the man said: "Much obliged.He would move it"--or simply, "Much obliged;" that on the 29th of June, and after appellee was injured, some one drove up to the wire, cut it down, and removed it.There was no evidence that the wire from which appellee received his injuries was hanging down, as above stated, prior to Saturday, the 26th day of June, and the evidence showed that the wire had fallen into the hanging position above described, because the arm or leader which held it in its proper position had become detached, in some way, from the pole on which it was strung.

1.The appellant, in the operation of its business, employed and had a right to employ electricity, one of the most insidious and violent, and at the same time one of the most useful, forces known to man.It is, to use the language of the Supreme Court of North Carolina, in the case of Mitchell v. Raleigh Electric Co.,129 N.C. 166, 39 S.E. 801, 55 L. R. A. 398, 85 Am. St. Rep. 735, "the most deadly and dangerous power recognized as a necessary agency in developing our civilization and promoting our comfort and business affairs.It differs from all other dangerous utilities.Its association is with the most inoffensive and harmless piece of mechanism--if wire can be classified as such--in common use.In adhering to the wire, it gives no warning or knowledge of its deadly presence.Vision cannot detect it.It is without color, motion, or body.Latently and without sound it exists, and, being odorless, the only means of its discovery lies in the touch, which, as soon as done, becomes its victim."While the law does not make those who are permitted to use this deadly agency insurers against all loss that may be occasioned thereby, it does require of them the exercise of that constant vigilance and care which a man of reasonable prudence should exercise in respect of such a dangerous agent, taking into consideration his obligation to protect his fellows from all peril or danger which, by the exercise of reasonable prudence, can be avoided.Southern Bell Telephone & Telegraph Co. v. McTyer,137 Ala. 612, 34 So. 1020, 97 Am. St. Rep. 62;Norfolk Ry. & Light Co. v. Spratley,103 Va. 379, 49 S.E. 502;Haynes v. Raleigh Gas Co.,114 N.C. 203, 19 S.E. 344, 26 L. R. A. 810, 41 Am. St. Rep. 786.

Reasonable prudence requires that, where the danger is known to be great, the care and watchfulness shall be commensurate with it, and it is a legal truism that what, under some conditions, will amount to ordinary care will, under other conditions, amount to even that reckless disregard of the rights of others which, in law, is wantonness.Grand Trunk Ry. Co. v. Ives,144 U.S. 408, 12 S.Ct. 679, 36 L.Ed. 485;Birmingham R., L. & P. Co. v. Williams,158 Ala. 381, 48 So. 93;Matson v. Maupin,75 Ala. 312."Negligence consists in a want of proper care, which always depends upon the circumstances in a particular case.Greater care is required to preserve a diamond than an ordinary chattel."Carter v. Chambers,79 Ala. 230.

In this case there is no question of contributory negligence.The appellee was confessedly injured by a defect in the wires of appellant.That defect existed for three days prior to appellee's injury.During that period, the cars of appellant were constantly passing the defective point, and the defect, if the evidence is to be believed, was open to ordinary observation.This defect existed on a residence street of a populous city.The most casual inspection by appellant would have discovered the defect.Three days before the injury of appellee, another boy was injured by this same defective wire.Appellant was under the duty to the residents of Birmingham of keeping its wires in such condition as not to subject them to needless peril.It did not do so, and it offered no evidence tending to show that the break did not occur by reason of its negligence, or that, if the break occurred through no neglect on its part, it could not reasonably have been discovered and sooner repaired.In our opinion, under the evidence, on the subject of simple negligence, the charge of the court below was certainly as favorable to appellant as the law as applied to the facts of the case required it to be; and that the court committed no error in submitting the question of simple negligence vel non to the jury in the various phases in which that question was presented by the pleadings.Haynes v. Raleigh Gas Co., supra;City Electric R. R. Co. v. Conery,61 Ark. 381, 33 S.W. 426, 31 L. R. A. 570, 54 Am. St. Rep. 262;Joyce on Electricity, §§ 438, 606;Trulock v. Wiley (C. C. A.)187 F. 956;Clements v. A. G. S. R. R. Co.,127 Ala. 174, 28 So. 643;Norfolk Ry. & Light Co. v. Spratley, supra.

2.It is insisted by appellant that the evidence by which the appellee sought to show that appellant had knowledge of the defective condition of the wire prior to appellee's injury was irrelevant and illegal; and that therefore there was no evidence from which the jury were authorized to infer that appellant had actual knowledge of the defect prior to appellee's injury.That the appellant had an agent, possessing the authority to inspect its wires and remedy defects or breaks in them, was necessary to the orderly and proper conduct of its business.Undoubtedly it had such an agent.Did appellee's evidence tend to show that this agent had knowledge of the defect prior to appellee's injury?S. & N. A. R. Co. v. Henlein,52 Ala. 606, 23 Am. Rep. 578.

The evidence tends to show that the party who gave the information, if he gave the information, of the defective wire, on the day before appellee's injury, not only had the right to give it, but that he had the right to demand that appellant repair the break.If his evidence is to be believed, he went to the place where he had a right to expect this agent to be, i. e., the place of business of appellant.Upon inquiry there, he was directed to a man, at that time engaged in writing in appellant's office, and evidently an employé of appellant.He gave to that man the information, and that man, the evidence tends to show, said: "Much obliged.I will attend to it."The next day the matter was attended to, and the wire was moved.It is plain that the jury were authorized to infer from this evidence that the appellant had actual notice of the dangerous condition of the wire, and that the court properly admitted the above evidence as relevant to that issue, and properly submitted the question of its sufficiency to the jury.Tenn. R. Trans. Co. v. Kavanaugh,101 Ala. 1, 13 So. 283;S. & N. A. R. Co. v. Henlein, supra.

3.Wantonness is the conscious failure by one charged with a duty to exercise due care and diligence to prevent an injury after the discovery of the peril, with knowledge of the inevitable or probable results of such failure.It is not material whether such conscious failure to discharge such duty is occasioned by an act of omission or commission.In the discharge of such duty, an honest effort to prevent the threatened injury is required by the law of him who is charged with the performance of such duty, and who knows of the necessity of such performance.While wantonness may be inferred from an entire want of care, it does not follow that an entire want of care must be shown to establish wantonness.Birmingham R. & E. Co. v. Pinckard,124 Ala. 372, 26 So. 880;Birmingham R. & E. Co. v. Williams,158 Ala. 381, 48 So. 93.One may be guilty of willful or wanton misconduct without actual intention to injure, and, as we have above said, that which may, in some instances, amount to ordinary care under other conditions may amount to wanton misconduct.Grand Trunk Ry. Co. v. Ives, su...