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

• Decision Date: 30 May 1912
• Citation: 59 So. 217,177 Ala. 422
• Court: Alabama Supreme Court
• Parties: BIRMINGHAM RY., LIGHT & POWER CO. v. CANFIELD.

59 So. 217

177 Ala. 422

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

Supreme Court of Alabama

May 30, 1912

Appeal from City Court of Birmingham; C. C. Nesmith, Judge.

Action by Lloyd H. Canfield against the Birmingham Railway, Light &amp Power Company. From a judgment for plaintiff, defendant appeals. Affirmed.

The facts appear from the opinion of the court. The following charges were refused to the defendant: (3) "If you believe from the evidence that at and prior to the time of the accident there was no trouble with the lights supplied with electric current from the Edison wire at Twenty-Third street, which it is alleged was in contact with the arc circuit, then you must find for defendant." (5) "If you believe from the evidence that the Edison wires were properly grounded, and that the said wires were in contact with the arc circuit at Twenty-Third street, and if you further believe from the evidence that the said Edison wires would not have injured plaintiff, had he come in contact with them, then you must find for defendant." (6) "If you believe from the evidence that, had the Edison wire been in contact with the arc circuit wire at Twenty-Third street the electric light slide, with current by said Edison wire would have been affected and caused to flicker, and if you further believe from the evidence that at and prior to the time of the accident the said lights were not affected, and were not flickering, then your verdict should be for the defendant."

Tillman Bradley & Morrow and C. E. Rice, all of Birmingham, for appellant.

Harsh, Beddow & Fitts, of Birmingham, for appellee.

McCLELLAN J.

Action for personal injuries, by a servant (appellee) against the master. Of the nine counts of the complaint filed, one only--the third--was not affirmatively charged out by the court. That, with a general traverse and special pleas of assumption of risk and contributory negligence, of the sufficiency of which special pleas no question appears to have been made, constituted the issues submitted to the jury. The plaintiff was a lineman in the employ of the defendant, and was, when injured, engaged in that service. The point of contention between the litigants really rises in respect of the particular, immediate physical means of his injury. The plaintiff's theory--and this was accepted by the jury--was that a deadly, high voltage was communicated to his body through the imparting, by contact, of that dangerous current to a wire or wires of low voltage with which, in the performance of his duty, plaintiff's person came in contact, either directly or through a broken telephone wire he was directed to remove from in or about a transformer. On the other hand, the theory of the defendant was that his injury resulted from his bringing his person in contact with the high-voltage wires of its plant. The third count was drawn under the first subdivision of the Employer's Liability Statute (Code, § 3910).

The description of the defect in the ways, works, etc., is as follows: "The apparatus for attaching said wires to one of said poles, to wit, a pole at or near Twenty-Third street and First alley in said city, to wit, a cross-arm and pin therein, was defective, and as a proximate consequence of said defect, said wire came near to said pole upon which plaintiff was, and being heavily charged with electricity, caused plaintiff to be burned and shocked by electricity on the occasion aforesaid, and to suffer said injuries and damage."

The plaintiff was injured at a place approximately two blocks from the place whereat the alleged defect existed. Strung on poles and cross-arms between the two places and beyond them on the line was a wire which carried a highly dangerous current of 3,000 to 4,000 volts, and also a wire or wires carrying a voltage of 110--a voltage not reguarded as highly dangerous. The high-voltage wire was strung above that of lower voltage. These wires were attached to glass insulators, which, in turn, were attached, screwed, to wooden pins; and these pins were inserted in holes in cross beams or arms which were fastened to the pole.

It was the plaintiff's contention that the place where the cross-arm was attached to the pole, at Twenty-Third street and First alley, was lower than that of the wire attachment on the poles on both sides thereof, which condition would permit the drawing of the pin, supporting and screwed to the glass insulator, out of the hole in the cross-arm, by the natural tension of the low-voltage wire as attached, on both sides at greater elevations, to the neighboring poles, unless the pin was so secured to the cross-arm as to overcome this tension; and that on this occasion the pin was drawn out by the tension of the low-voltage wire, and, rising to approach the level of the attachment of that wire to the neighboring poles, came in contact with the high-voltage wire at that point, received into it a higher and very dangerous current, which was transmitted to the place whereat plaintiff was at work, injuring him when his person came in contact with a wire that would otherwise have been safe, namely, a wire, which, if unconnected with one carrying high voltage, would not, could not, have inflicted the injury suffered by plaintiff.

There was evidence tending to show that a properly constructed or maintained...