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

• Decision Date: 30 June 1914
• Docket Number: 504
• Citation: 188 Ala. 262,66 So. 95
• Parties: BRIGGS v. BIRMINGHAM RY., LIGHT & POWER CO.
• Court: Alabama Supreme Court

66 So. 95

188 Ala. 262

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

No. 504

Supreme Court of Alabama

June 30, 1914

Rehearing Denied July 25, 1914

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

Action by Irene Briggs, as administratrix, against the Birmingham Railway, Light & Power Company. From a judgment for defendant, plaintiff appealed. Reversed and remanded.

Mayfield J., dissenting.

Allen &amp Bell, of Birmingham, for appellant.

Tillman Bradley & Morrow, of Birmingham, for appellee.

McCLELLAN J.

Appellant's intestate, Herbert W. Briggs, was killed January 20, 1911, by electricity, under circumstances to be stated. The action is for damages for his wrongful death.

Intestate was, when killed in the employment and service of the Southern Bitulithic Company, which was then engaged in performing its contract with the city of Birmingham to pave the intersection of Twenty-First street and Avenue G, public thoroughfares in that city. Intestate's duty, which he was performing when stricken, was as engineer of a concrete mixer. This machine was so constructed as to allow its movement in or over a street by means of its own engine power. The engineer's proper place, when the machine was moving was on the ground beside it with his hand on the steering wheel, which wheel was designed to control, in a limited sphere, the direction of the machine. He was so related to the machine at the time he was killed.

Above the center of intersection of the thoroughfares mentioned a street arc light was swung from a cable extending from opposite corners of the square of intersection. This light was put there, maintained, and operated by the light and power company (appellee) under a contract with the city of Birmingham. The frame for the light cleared the street surface by a fraction over 13 feet. The machine (its "gooseneck") of the paving company rose a fraction over 14 feet from its plank way (laid by hand ahead of it on the surface of the street). It was determined by the superior (to the engineer) representative of the paving company to move the machine to another part of the space in the intersection of these streets, beyond, generally (from the point where the machine was at rest), the point in the intersection above which the light frame was hanging. The engineer was ordered to move the machine, plank was laid as indicated, and an employé of the paving company, equipped with a stick or piece of scantling for the purpose, was placed on the "gooseneck" of the machine to shunt and hold aside, for the passage of the machine, the light's frame immediately toward which the machine's direction was charted. The employé put the piece of wood against some part of the light frame and pushed it clear of the sweep of the machine's top section, but the wood slipped off the frame of the light, the light swung back to its perpendicular, and the metal rim or metal shade of the frame came in contact with the hoisting wire or chain on the machine, through which the deadly electrical current passed to other metal parts of the machine, and thence into the hand (at the steering wheel) and body of Briggs, instantly killing him. These circumstances were not the subjects of dispute in the evidence.

Section 54, p. 176, of the Code of the City of Birmingham, as revised by Mr. Weakley, was admitted in evidence, and is as follows:

"Arc Lamps. (a) Must be provided with reliable stops to prevent carbons from falling out in case the clamps become loose. (b) All exposed parts must be carefully insulated from the circuit. (c) Must, for constant-current systems, be provided with an approved hand switch that will shunt the current around the carbons, should they fail to feed properly."

This ordinance was in force at the time of Briggs' death.

The trial court gave the general affirmative charge for the defendant, at its request.

Where an ordinance or by-law, assuming to exercise a power within the municipality's competency, is not void on its face, the legal presumption is that the ordinance or by-law is reasonable and valid until the contrary is shown by proper evidence. Bryan v. Mayor, etc., 154 Ala. 447, 452, 45 So. 922, 129 Am.St.Rep. 63; Marion v. Chandler, 6 Ala. 899, 902; Johnson v. Town of Fayette, 148 Ala. 497, 42 So. 621. When the unreasonableness vel non of an ordinance or by-law is asserted or urged, the question thus made is to be decided by the court, not the jury. Marion v. Chandler, supra; Johnson v. Town of Fayette, supra; 2 McQuillin on Munc. Corp. § 729; 2 Dillon, § 599; Evison v. Chicago R.R. Co., 45 Minn. 370, 48 N.W. 6, 11 L.R.A. 434. A qualification of this doctrine appears to have commended itself to the Supreme Court in A. & W. Tel. Co. v. Philadelphia, 190 U.S. 160, 166, 23 Sup.Ct. 817, 47 L.Ed. 995; but the conclusion, in this respect, of our cases, as well as the texts cited above, seem to us to afford the sounder, more practical rule, and will be adhered to. The court having the question to determine will take relevant evidence to advise its judgment upon the issue of unreasonableness vel non. 2 Dillon, § 599; Marion v. Chandler, supra; Van Hook v. Selma, 70 Ala. 361, 365, 45 Am.Rep. 85; 2 McQuillin, § 729. In order to justify the court in annulling an ordinance or by-law on the ground that it is unreasonable it must be "demonstrably shown" that it is unreasonable; "equipoise of opinion" on the matter will not warrant the setting aside of the ordinance or by-law on the ground of unreasonableness. Marion v. Chandler, 6 Ala. 899, 902.

The manifest object of the subdivision (b) of the ordinance quoted before is to assure safety from the highly dangerous effect of electricity. The abstract power of the municipality to ordain in respect of care and safety as the quoted subdivision undertakes is not denied. Indeed, the power sought to be asserted thereby is of police, and the obvious purposes thereof forbid doubt of the municipal competency to so ordain, if the effort made does not bring the subdivision under the rule which requires the annulment of ordinances that are unreasonable.

It is clear from the terms of the subdivision (b) of the ordinance that all exposed parts of arc lamps should be insulated; and that "from the circuit." Upon testimony of qualified experts it is insisted for appellee that, if that provision of the subdivision should be accepted as requiring insulation from any voltage that might be upon the wires carrying no current to an arc lamp, the result would be to exact the impossible; and hence the subdivision would be unreasonable and void. So from this premise it is urged that the subdivision should be interpreted as requiring insulation from the potential; that is, as we understand the testimony for defendant, an insulation that would suffice to "isolate" that degree of voltage required to operate the individual arc lamp of the series of arc lamps of which the arc lamp in question was a member. The arc lamp in question was of a series of 60 arc lamps employed in street lighting; and the voltage necessary to the use of the individual arc lamp was approximately 72 volts. The wires connecting the series were charged with a voltage equal to the multiple of the number of lamps in the series (60) and the voltage (72) required to operate each arc lamp of the series. This placed upon the wires a current of approximately 4,400 volts. The testimony is in conflict upon the issue of the feasibility or practicability vel non of an insulation adequate and effective to confine that maximum voltage so as to isolate it from the exposed parts of the arc lamps of the series. The evidence on this issue has been carefully considered by the full bench. The court is of the...