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

• Decision Date: 05 December 1912
• Citation: 60 So. 304,179 Ala. 372
• Parties: BIRMINGHAM RY., LIGHT & POWER CO. v. COCKRUM.
• Court: Alabama Supreme Court

60 So. 304

179 Ala. 372

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

Supreme Court of Alabama

December 5, 1912

Appeal from Circuit Court, Jefferson County; E. C. Crow, Judge.

Action by Nannie C. Cockrum against the Birmingham Railway, Light &amp Power Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

The following are the counts discussed in the complaint: (2) Wantonly or willfully or intentionally causing a wire to be heavily charged with electricity, with the knowledge that plaintiff would probably be injured thereby, and with reckless disregard of the consequences. (3) "Plaintiff claims of the defendant, a body corporate, doing business as a street railway company in Jefferson county, Alabama, the sum of $50,000 as damages, for that on, to wit, August 10th plaintiff, while in the city of Birmingham, between Alley B of said city and that German-Lutheran Church which is on the southeast corner of Avenue B and Nineteenth Street South, in said city, at a place where she had a right to be, and was not a trespasser was severely shocked by coming in contact with a wire heavily charged with electricity. [Here follows a catalogue of injuries and damages.] Plaintiff avers said injuries were proximately caused by the negligence of defendant's servants or agents while acting within the line and scope of their employment, which negligence consisted in this: The servants or agents aforesaid negligently caused the wire aforesaid to be heavily charged with electricity." (4) Same as 3, except that wanton willful, or intentional negligence is charged. (5 and 6) Allege the same facts as 3, and rely for negligence on the violation of the following ordinance:

"Section 369. Guard Irons.--Where angles occur in the lines subjecting the supports to increased strains, guard irons must be placed at the outer ends of the cross-arms. Guard wires must also be placed whenever their presence will prevent telephone, telegraph, or other wires from coming into accidental contact with an electric light and trolley wires for the street railroad. Whenever it is necessary for electric light, power, or trolley wires to be run under telegraph, telephone, or fire alarm wires, permission shall be granted to do so; but the company running such wire or wires shall pay the expense of raising the other wires, if lawfully constructed, so that the said wires shall not be less than five feet above said electric light, power, or trolley wire, to make them entirely safe. Whenever any telegraph or telephone company wishes to stretch wires above any electric light, power, or trolley wires, they must cross not less than five feet above said wires. The guard wire above each trolley wire must consist of two wires not less than ten gauge and be tightly strung not less than two feet above said trolley wire, and twelve inches on each side; but when strung on poles, center street connection, one guard wire shall suffice. The cost of such guard wire and guard iron and change of poles shall be borne by the person or company making the last construction."

The following is charge 20: "If the jury believe from the evidence in this case that plaintiff's husband, Charles C. Cockrum, has made a contradictory statement as to any material facts in evidence in this case, the jury may consider such contradictory statement in determining what weight they will give the testimony of said Charles C. Cockrum."

Tillman, Bradley & Morrow and L. C. Leadbeater, all of Birmingham, for appellant.

Denson & Denson, of Birmingham, for appellee.

ANDERSON J.

It has been repeatedly held by this court that, notwithstanding negligence may be charged in most general terms, this rule does not relieve the plaintiff from bringing himself within the protection of the negligence charged by averring the facts showing the relationship of the parties and from which the duty springs. L. & N. R. R. Co. v. Holland, 164 Ala. 73, 51 So. 365, 137 Am. St. Rep. 25; Sloss-Sheffield Co. v. Bibb, 164 Ala. 62, 51 So. 345.

We think, however, that count 3 meets these requirements by showing that the plaintiff was not a trespasser upon the defendant's property, and that she was in a position to invoke the simple negligence as charged in said count. Indeed, so long as the count showed that the plaintiff was anywhere except upon the defendant's property or did not collide therewith at a point where she would be a trespasser, she is protected as against the simple negligence of the defendant without having to set up whether she was or was not rightfully upon the property of one other than the defendant. Count 3, however, avers that plaintiff was not a trespasser and was at a place where she had a right to be, and if this was a necessary averment, which was not the case, and was faulty as a mere conclusion of the pleader, the point was not taken by any ground of demurrer. It is true, we have a line of cases holding that a complaint charging simple negligence is demurrable unless it shows that the plaintiff was entitled to recover for simple negligence by showing that he was not a trespasser and that the defendant owed him the duty of not negligently injuring him; but those cases applied to counts which showed that the plaintiff was upon the track or premises of the defendant. So too does the case of A. G. S. R. R. Co. v. Godfrey, 156 Ala. 202, 47 So. 185, 130 Am. St. Rep. 76, make a distinction between the duty owing what is termed a "bare licensee" and one who is upon the defendant's premises by invitation; but that rule applies to injuries arising upon the premises of the defendant, and not upon a public place or the premises of one other than the defendant. It has been held by the New Jersey court, and we think properly so, that a plaintiff was entitled to recover for injuries resulting from the simple negligence of a telephone company unless he was a trespasser as against the company. If the plaintiff was injured upon the premises of one other than the defendant, it mattered not whether he was a licensee or a trespasser. "If he was a bare licensee, he would still be there lawfully. If a trespasser, his wrong would be to the landowner alone, not a public wrong, nor a wrong to the defendant." Guinn v. Delaware & A. Tel. Co., 72 N. J. Law, 276, 62 A. 412, 3 L. R. A. (N. S.) 988. Of course, the point of the injury would have considerable bearing upon the degree of care that is due the public and in determining whether or not the defendant was guilty of negligence; but it is liable for all injuries resulting from its simple negligence to persons who are not trespassers upon its property or premises. The trial court did not err in overruling the demurrers to count 3 of the complaint.

Counts 5 and 6 of the complaint are predicated upon the violation of a city ordinance requiring guard wires and whether said counts were or were not subject to demurrer matters not, for the reason that the general charge, as requested by the defendant, upon each of said counts should have been given.

As we construe said ordinance, when taken in its entirety (and which will be set out in full by the reporter; section 369, City Code), we are of the opinion that it requires the erection and maintenance of guard wires only by the last company that erects its wires. That is to say, the guard wires must be placed by the person or company making the last construction, and the undisputed evidence shows that the defendant put its wires at this place first. See testimony of witness Harris.

It was therefore the duty of the telephone company and not of the defendant to erect the guard wires under the ordinance, if the testimony of Harris is true, and which must be assumed to be true upon this appeal, as it is not contradicted. While we hold that the defendant was not liable as for a violation of the ordinance and was entitled to the general charge as to counts 5 and 6, we do not mean to hold that the fact that the ordinance requiring the telephone company to erect the guard wires would relieve this defendant from the common-law duty of erecting said guard wires or of requiring the telephone company to do so if the said guard wires would be a reasonable protection to the public as against injuries liable to result from a crossing or collision of the wires.

"Where electric wires are maintained by different companies in the streets, obligations are by law imposed upon each, not only with respect to others, but also to individuals and to the public in general to prevent a contact of the wires, which may result in injury to property or person. The question as to the duty of such companies arises most frequently where an injury has resulted from contact of a telegraph and telephone wire with an electric light or trolley wire by which the dangerous current of the latter is conveyed to the former." Joyce on Electricity, § 449a. Says the same author in section 517a: "It is the duty of an electrical company, maintaining its wires in the streets, to prevent, so far as can be done by the exercise of reasonable care and diligence, the...