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

• Decision Date: 20 November 1913
• Citation: 63 So. 782,9 Ala.App. 588
• Parties: BIRMINGHAM RY., LIGHT & POWER CO. v. JACKSON et al.
• Court: Alabama Court of Appeals

63 So. 782

9 Ala.App. 588

BIRMINGHAM RY., LIGHT & POWER CO. v. JACKSON et al.

Court of Appeals of Alabama

November 20, 1913

Appeal from City Court of Birmingham; William M. Walker, Judge.

Action by Irene Jackson and another as administrators, against the Birmingham Railway, Light & Power Company, for death of their intestate. Judgment for plaintiffs, and defendant appeals. Reversed and remanded.

The first count alleges that defendant was engaged in the operation of an electric railway and light and power plant and used in connection with its business certain electric wires, and that defendants, its servants or agents, while acting within the line and scope of their employment negligently left a live wire exposed at Twelfth street and Fifth avenue, public streets in the incorporated city of Birmingham, Ala., and that plaintiff's intestate came in contact with said wire, and was shocked and killed, and it is averred that the death of their said intestate was the proximate consequence of and caused by reason of the negligence of defendant, its servants or agents, as aforesaid.

"(3) Plaintiff claims of defendant $30,000 as damages for this that heretofore, to wit, on the 5th day of July, 1910, the defendant was engaged in the following business in Jefferson county, Ala., namely, the operation of an electric railway light and power plant, and used in connection therewith certain wires, which were strung along the streets of the incorporated city of Birmingham, Ala., a city of over 100,000 in population. And currents of electricity were conducted along or through said wires of a high voltage, and said wires were dangerous if they were not properly insulated or were left exposed, and were liable to come in contact with citizens upon the streets. And the plaintiffs aver that on, to wit, the 5th day of June, the defendant's servants or agents, acting within the line and scope of their employment, wantonly or willfully caused or permitted a live wire with highly dangerous electric current, to be left exposed at the following place, namely: Twelfth street and Fifth avenue, which was a public place in said city, where people passed and repassed, and where said wire was liable to come in contact with such people, knowing that plaintiff's intestate, or some other person would probably be injured or killed by said live wire. And plaintiff avers that as a proximate consequence of said willfulness and wantonness on the part of defendant's servants or agents, plaintiff's intestate, Ed Jackson, came in contact with said wire and was thereby killed. And plaintiff avers that the death of said intestate was a proximate consequence and caused by reason of the wantonness or willfulness of defendant, its servants or agents, as aforesaid."

The pleas were the general issue and contributory negligence. The evidence for plaintiff tended to show that during the night a high wind was blowing, and that about between 7 and 8 o'clock next morning one Smith passed along at Twelfth street and Fifth avenue, and saw a live wire with the end on the ground, and as the wind blew it against the post, it would blaze or flash, and that defendant was notified about 8 o'clock by phone that a live wire belonging to them was down at this point; that some time between 10 and 11 o'clock that morning Ed Jackson, the deceased, came in contact with the wire as he was walking along the sidewalk, and was burned to death. It was further shown that the point where the accident happened was a public street where many people passed and repassed. The evidence for defendant tended to show that Jackson was warned not to go near the wire, and that he went up to it anyway, when it blew against his left side, burning him. Other witnesses stating that he caught hold of the wire after being told that it was a live wire.

The following charges were refused to defendant:

"(5) The court charges the jury that defendant was entitled to a reasonable time after the fall of the wire to repair it, or to remove it out of the way of persons using the street; and, if the jury find that the injury to plaintiffs' intestate occurred before the expiration of such a reasonable time, then the plaintiffs are not entitled to recover anything in this action.

"(6) The court charges the jury that before a party can be said to be guilty of willful or wanton conduct it must be shown that the person charged therewith was conscious of his conduct, and conscious, from his knowledge of the existing conditions, that injury would likely or probably result from his conduct, and that, with reckless indifference to consequences, he consciously and intentionally did some wrongful act, or omitted some known duty which produced the injury."

"(3) The court charges the jury that if your minds are in a state of confusion as to whether plaintiff is entitled to recover in this action, then you cannot find a verdict for plaintiff."

Tillman, Bradley & Morrow and Frank M. Dominick, all of Birmingham, for appellant.

Gaston & Pettus, of Birmingham, for appellees.

PELHAM J.

As amended, the complaint consisted of three counts. Count 2 having been withdrawn by the plaintiff (appellee here), the case was submitted to the jury on the first and third counts. The third count of the complaint as amended, as we construe it, is a count charging wanton or willful injury. By its averments it charges in terms, and shows by the facts alleged, wantonness or willfulness. The allegation that the defendant's servants or agents were cognizant of the surrounding circumstances and conditions existing at the time and place in question, and knew that the injury would likely or probably be inflicted as a proximate result of the conduct on their part complained of, is an allegation of consciousness on the part of defendant's agents or servants that the injury would likely or probably result from such conduct. There is a sufficient averment of facts necessary to constitute a good count for wanton injury, and it is not rendered bad by the averment being in the alternative as to the charge of wantonness or willfulness. So. Ry. Co. v. Weatherlow, 153 Ala. 171, 175, 44 So. 1019. The cases of B.R., L. & P. Co. v. Brown, 150 Ala. 327, 43 So. 342, and So. Ry. Co. v. Weatherlow, 153 Ala, 171, 44 So. 1019, cited as authorities to the contrary of the conclusion reached by us, are not only not in the way of our holding, but upon proper analysis will be found to support the conclusion reached as to this count.

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