Blakeney v. Alabama Power Co., 1 Div. 619.

• Court: Supreme Court of Alabama
• Writing for the Court: BOULDIN, J.
• Citation: 222 Ala. 394,133 So. 16
• Parties: BLAKENEY v. ALABAMA POWER CO.
• Docket Number: 1 Div. 619.
• Decision Date: 05 March 1931

133 So. 16

222 Ala. 394

BLAKENEY
v.
ALABAMA POWER CO.

1 Div. 619.

Supreme Court of Alabama

March 5, 1931

Appeal from Circuit Court, Mobile County; C. A. Grayson, Judge.

Action under homicide act by George H. Blakeney against tthe Alabama Power Company. Judgment for defendant, and plaintiff appeals.

Affirmed. [133 So. 17]

Harry T. Smith & Caffey, of Mobile, for appellant.

Inge, Stallworth & Inge, of Mobile, for appellee.

BOULDIN, J.

The suit is by a father to recover damages for the death of his minor son under the homicide act (Code 1923, § 5696).

George H. Blakeney, Jr., 12 years of age, while playing on the premises of Mrs. Brunson in Mobile August 7, 1929, went under the residence to recover a ball, and was there electrocuted.

His death is charged to the negligence of defendant, in that, while under contract to supply the residence with electric current of low voltage for domestic purposes, a current not dangerous to human life, the wires on said premises were negligently charged with a current of voltage far in excess of that required or proper for the service, and such as was dangerous to persons coming in contact therewith, and the deceased, coming in contact with said wires, was killed.

In actions of this kind the matter of location or place should appear in the complaint, in so far as necessary to show a duty [133 So. 18] of care toward the injured party. Birmingham Ry. L. & P. Co. v. Cockrum, 179 Ala. 372, 60 So. 304; American Ry. Express Co. v. Reid, 216 Ala. 479, 113 So. 507. In count 3 it was averred merely that the child was playing on the premises of Mrs. Brunson.

The demurrer, sustained by the trial court, raised the point that, for aught appearing, the child may have been climbing a pole carrying the service wire, and so came in contact therewith. Whether defendant would be liable for negligently overcharging the wire in such event, it is not necessary to decide.

Amended count 3, on which the case was tried, averred the facts showing the place and the occasion of the child's coming into contact with the current as appears in the undisputed evidence. This count cast no additional or different burden upon the plaintiff.

Sustaining a demurrer to original count 3 was therefore harmless, as we have often declared.

The same rule applies in requiring a definite averment that the alleged negligence proximately caused the injury. True, the original count was of that class wherein the direct relation of cause and effect was shown by the facts averred, and no further averment of proximate cause was essential. But the very reason why it was sufficient is that it charged proximate cause, and the express averment in the amended count added nothing to plaintiff's burden.

There was no direct evidence of any excess voltage on the service wires. Plaintiff's case was rested upon evidence tending to show the ordinary domestic current of 120 volts, or thereabout, is insufficient to produce death, or to inflict a severe and extensive burn, such as appeared on the lower leg of deceased. Other evidence of contact appeared about the neck.

Other evidence tended to show some one went up the pole to the transformer soon after the accident, and before the inspection made by defendant. Defendant's evidence denies any employee of defendant did so.

The plaintiff qualified from experience as a radio expert, testified to experiences with such current, and expressed the opinion that it was not strong enough to kill. On cross-examination, after stating, "I did not say that 110 to 120 volts would never kill; I don't know," he was asked, "Isn't that the general opinion of well informed electricians?"

There was no error in allowing this question. It went to the extent of the witness' qualifications as an expert, and so affecting the weight of his testimony. One may be qualified to testify as an expert, but a knowledge of the general opinion among experts of his class, or a want of such knowledge, may be drawn out on cross-examination, as going to the value of his opinion.

Evidence for defendant was directed, first, to the voltage in fact carried by the wires at the time; and, second, to the possibility and probability of the ordinary house current causing death under certain conditions.

The witness F. S. Keeler qualified by technical schooling and actual experience as an expert, and as superintendent of the Mobile plant having personal knowledge of the plant and equipment. He further testified to a detailed inspection, examination, and tests with volt meter to ascertain what voltage was on the wires. He was asked, on direct examination, "What was the extreme current or voltage that could be received on those wires?" He answered, "120 volts."

Appellant's objections raised the point that the question calls for expert opinion not based upon facts shown to be known to the witness, nor hypothecated upon given facts in evidence.

The general rule is declared that, where an expert opinion is called for based upon his own knowledge of the facts, the witness should first state the facts, then his opinion or conclusion. If not on his knowledge, then the question should be hypothetical, based on facts in evidence. Brown v. Mobile Electric Co., 207 Ala. 62, 91 So. 802. This means, of course, the special facts of the case, not the technical facts which qualify as an expert.

Not all the details of fact testified to by Mr. Keeler had been drawn out at the time of the above question. Their subsequent introduction, if...