Bloom v. City of Cullman

• Decision Date: 16 November 1916
• Docket Number: 6 Div. 145
• Citation: 73 So. 85,197 Ala. 490
• Parties: BLOOM v. CITY OF CULLMAN.
• Court: Alabama Supreme Court

73 So. 85

197 Ala. 490

BLOOM v. CITY OF CULLMAN.

6 Div. 145

Supreme Court of Alabama

November 16, 1916

Appeal from Circuit Court, Cullman County; R.C. Brickell, Judge.

Action by Mrs. Agnes Bloom, as administratrix, against the City of Cullman, for damages for the death of her intestate. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

Tennis Tidwell, of New Decatur, for appellant.

A.A Griffith, of Cullman, and Callahan & Harris, of Decatur, for appellee.

McCLELLAN J.

The plaintiff's (appellant's) intestate came to his death through contact with an electrically charged "chain" used by the city of Cullman in raising and lowering a street light operated by the municipality to light public thoroughfares therein. The street light was suspended over the street, on a cable running from the tops of two poles. Feed wires conveying electric current were strung from these poles to the thus suspended arc light. The suspension cable was near the feed wires; and there was evidence tending to show that the insulation on the feed wires had rotted and had fallen away, exposing the feed wire to at least possible contact with the suspension cable and the "chain" or with some of the metal mechanism connected therewith. The "chain" ran from a small windlass fastened to the pole about four feet from the surface of the street, thence up the pole to a wheel and thence along, near the suspension cable, to another wheel under which the "chain" was attached to the arc light.

The defendant's witness Ed Imbush testified as follows:

"I recollect the night Mr. Bloom received an injury down on First street and Second avenue. Mr. Bloom was my brother-in-law; he married my sister. I was with him the night he was injured. He was injured down on First street in the city of Cullman, Ala. We were going on that night to the Cullman Quartet Club. The Quartet Club was over on the other side of town, in the city of Cullman, Ala., in the southwest part of town. We were going from the north on that night. We were on the concrete sidewalk in front of Mr. Tilford's property on Second avenue on that night at the time Mr. Frank Bloom received his injury. I was about 15 or 20 steps ahead of him. I was about middle ways of the First street when he was injured at the pole. There was a remark made about the light not burning bright, and I think Frank Bloom made the remark. He said by going down

and jerking the chain he could make the carbons meet on the light and make it burn brighter. At that time he was on his way to the dance hall. He did not have anything to do with the electric light, and he was not in any way connected with the company, nor had he any duties to perform in connection with the light. I heard him say he could make the light burn brighter by jerking the chain. I walked right on past the pole and on the sidewalk, and in a few seconds after that I saw Mr. Bloom [around] on the pole and on the chain. At that time it was raining a little, kind of drizzling. I guess it was muddy on the street; it was a little muddy [on] the sidewalk. This was about 7 o'clock at night. My brother Johnnie was right along with Mr. Bloom and my mother and sister were in front of me, and we were all going to the same place. I judge my mother and sister were about 40 or 50 steps in front of me."

On cross-examination this witness testified as follows:

"The statement I heard Mr. Bloom make about taking hold of the chain and jerking it to make the light burn brighter, was back about 300 or 400 feet from the light, and there was nothing else said about it. We proceeded on down from the street towards the place where we were going. The first I knew of the death of Mr. Bloom was when I was something like 15 or 20 feet from the light. Mr. Bloom was standing up, holding to the chain. He was not suspended off the ground. He was dead when I got to him. I did not see him go out there."

No eyewitness to the tragedy, or to the acts of Bloom just before and at the time he came in contact with the "chain," was introduced. It otherwise appears that to come in contact with the "chain" a pedestrian traveling the streets, walking as Bloom was, must have left, or turned aside from, the usual walkway. The trial court gave the general affirmative charge for the defendant. It is asserted in briefs for appellant that the trial court entertained the opinion that, according to the testimony of Ed Imbush quoted above, Bloom was, as a matter of law, guilty of contributory negligence barring a recovery in this action. In the brief for the appellee, prepared by one of defendant's counsel who was not present at the trial, it is stated with commendable candor that, if that was the theory upon which the trial court proceeded in giving the general affirmative charge for the defendant, "then we cannot conscientiously defend that action of the court in view of the record in the case." Our opinion is that, if the court so instructed the jury upon the theory stated, the result was error; that the court, on the evidence before it, was not authorized to affirm, as a matter of law, that Bloom's death was proximately caused by his own negligence. More particular reference to that phase of the case will be later made.

Code, § 1273, is as follows:

"No city or town shall be liable for damages for injury done to or wrong suffered by any person or corporation, unless said injury or wrong was done or suffered through the neglect, carelessness, or unskillfulness of some agent, officer, or employé of the municipality engaged in work therefor and while acting in the line of his duty, or unless the said injury or wrong was done or suffered through the neglect, carelessness, or failure to remedy some defect in the streets, alleys, public ways, or buildings after the same had been called to the attention of the council, or after the same had existed for such unreasonable length of time as to raise a presumption of knowledge of such defect on the part of the council, and whenever the city or town shall be made liable to an action for damages by reason of the unauthorized or wrongful acts, or the negligence, carelessness, or unskillfulness of any person or corporation, then such person or corporation shall be liable to an action on the same account by the party so injured."

In construction of that section this was said in City of Birmingham v. Carle, 191 Ala. 539, 541, 68 So. 22, 23, L.R.A.1915F, 797:

"By Code 1907, § 1273, the liability of municipalities for damages for injuries done or suffered is limited to two distinct classes of negligent misconduct or omission, viz (a) Where the wrong done or suffered was the proximate result of culpable act or omission of some agent, officer, of employé then engaged, within the line of his duty, in the municipality's service; (b) where the wrong done or suffered was the proximate result of culpable municipal omission 'to remedy some defect in the streets, alleys, public ways, or buildings, after the same (i.e., defect as defined) has been called to the attention of the council, or after the same (i.e., defect as defined) had existed for such unreasonable length of time as to raise a presumption of knowledge of such defect on the part of the council.' Further in said section (1273) it is provided, touching the second (b) classification, ante, that where the liability of the municipality results from the breach by the municipality of its duty to remedy the defect, as defined in the statute--a defect to the existence of which the attention of the council had been called, or of

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