Byars v. Alabama Power Co.

• Decision Date: 07 January 1937
• Docket Number: 6 Div. 975
• Citation: 172 So. 621,233 Ala. 533
• Parties: BYARS et al. v. ALABAMA POWER CO.
• Court: Alabama Supreme Court

172 So. 621

233 Ala. 533

BYARS et al. v. ALABAMA POWER CO.

6 Div. 975

Supreme Court of Alabama

January 7, 1937

Rehearing Denied March 4, 1937

Appeal from Circuit Court, Pickens County; Benj. F. Elmore, Judge.

Suit for damages by Mary A. Byars, Mary Katie Byars, and Ronnie Ellen Byars, for the use and benefit of the New Amsterdam Casualty Company, against the Alabama Power Company. Judgment for the defendant, and the plaintiffs appeal.

Reversed and remanded.

V.W Elmore, of Gordo, and Jones & Dominick and A. Bruce McEachin all of Tuscaloosa, for appellants.

McQueen McQueen & McQueen, of Tuscaloosa, D.D. Patton, of Carrollton, and Martin, Turner & McWhorter and J.C. Blakey, all of Birmingham, for appellee.

KNIGHT Justice.

This cause is here by appeal, and on petition of appellants for certiorari to the circuit court of Pickens county

The plaintiffs, the widow and dependent minor children of James A. Byars, deceased, suing for the use and benefit of the New Amsterdam Casualty Company, filed this suit in the circuit court of Pickens county to recover of the defendant, the Alabama Power Company, a certain sum of money (together with attorneys' fees) as damages for the wrongful death of the said James A. Byars.

It is averred in the several counts of the complaint that the said James A. Byars, deceased, was an employee of the Tuscaloosa Cotton Seed Oil Company at the time of his injury and death, and that his injury and death were occasioned by an accident which arose out of and in the course of his employment; that the said Byars and the said Tuscaloosa Cotton Seed Oil Company, and the defendant were subject to the provisions of article 2 of the Workmen's Compensation Law of Alabama (Code 1923, § 7543 et seq.); that the said Mamie Byars and the two named children of the deceased employee elected to receive and are entitled to receive, and are receiving from the New Amsterdam Casualty Company, who was the insurance carrier of the Tuscaloosa Cotton Seed Oil Company, the sum of $7.20 per week for 300 weeks, amounting to $2,160; that said insurance company is subrogated to the right of said widow and dependent children to recover of this defendant said compensation, and an attorney's fee, and plaintiffs file this suit for the benefit of the New Amsterdam Casualty Company, as such insurance carrier.

This suit is evidently brought under the provisions of section 7586 of the Code. No question arises on the pleadings.

Defendant pleaded general issue and contributory negligence.

At the conclusion of the evidence, the court gave at the written request of the defendant a charge in the following words: "If you believe the evidence in this case, you cannot return a verdict for the plaintiff."

And the court thereupon said to the jury: "And I have written the verdict for you."

Continuing, the court said: "I give you this charge because under the evidence in this case, which was uncontradicted and undisputed, the court is of the opinion that Mr. Byars was guilty of contributory negligence, which brought about and caused his death; and believing that way, that that is the law and the evidence, it is my duty to so instruct you; and I give you this charge: 'I charge you, gentlemen of the jury, that if you believe the evidence in this case, you cannot find a verdict for the plaintiff. I will ask one of you gentlemen to sign this verdict: "We, the jury, find the issues in favor of the defendant, Alabama Power Company." One of your number just sign the verdict: you need not leave the box.' "

The plaintiff duly reserved an exception to this action of the court in giving said charge to the jury.

The bill of exceptions further recites:

"And in open court, and in the presence of the jury, and before the jury retired, the plaintiff excepted to each portion of either the oral charge or remarks of the court, whichever was the proper designation for the statement or statements by the court to the jury, and the court then stated as follows:

" 'Well, then I will withdraw the remarks made by the court. Gentlemen, don't pay any attention to the remarks made by the court. Just sign the verdict.' "

Thereupon, counsel for plaintiff then stated: "I am afraid that might not cure it, Judge, so we still reserve an exception."

Whereupon the court said, "All right." And thereupon, one of the jurors, without the jury having retired, signed the following verdict: "We, the jury, find the issues in favor of the defendant, Alabama Power Company."

It also appears from the bill of exceptions that after the court announced that he would give the general charge for the defendant, counsel for plaintiffs then stated as follows: "Will your honor allow me to argue to the jury the truth of the evidence?"

Whereupon the court said: "No, sir, I will not let you argue to the jury at all."

To this action and ruling of the court the plaintiffs duly reserved an exception.

Under the circumstances outlined above, the action of the court amounted to a directed verdict for defendant, and it could only be justified upon the theory that the plaintiffs, upon whom rested the burden of proof to establish their right to recover, had wholly failed to adduce evidence to support their cause of action, or that the testimony of the plaintiffs' own witnesses, without conflict, made out the defense of the opposing party. Harris v. State ex rel. Wilson, Solicitor, 215 Ala. 56, 109 So. 291; O'Bar v. Southern Life & Health Ins. Co., 232 Ala. 459, 168 So. 580; Christian v. Stith Coal Co., 189 Ala. 500, 66 So. 641; Bedsole v. Davis, 189 Ala. 325, 66 So. 491; Tobler v. Pioneer M. & M. Co., 166 Ala. 482, 52 So. 86; Sims v. Sims, 2 Ala. 117; Jarrell v. Birmingham Water Works Co., 179 Ala. 503, 60 So. 835; Dorough v. Alabama Great Southern R. Co., 221 Ala. 305, 128 So. 602.

If, however, the plaintiff made out a prima facie case, and the defense of contributory negligence was dependent upon oral testimony, the credibility of the evidence must be referred to the jury, and the court could not direct a verdict for the defendant, thus assuming the credibility of the exculpatory evidence, though such evidence was clear and without dispute. Shipp et al. v. Shelton, 193 Ala. 658, 69 So. 102; Sherrill v. Merchants' & Mechanics' T. & S. Bank, 195 Ala. 175, 70 So. 723; Scott v. State, 110 Ala. 48, 20 So. 468; Lawson v. Mobile Electric Co., 204 Ala. 318, 85 So. 257; Dorough v. Alabama Power Co., 200 Ala. 605, 76 So. 963.

And in such circumstances counsel have the right to argue to the jury the issue of the credibility of the witnesses. Dorough v. Alabama Power Co., supra; Lawson v. Mobile Electric Co., supra; Harris v. State ex rel. Wilson, supra.

Quite a difference is to be noted between the legal effect of a directed verdict, and a charge to find for one or the other litigant, with hypothesis.

Was the court, under the evidence, justified in directing a verdict for defendant?

The evidence, without conflict, showed that James A. Byars, deceased, at the time of his death, was an employee of the Tuscaloosa Cotton Seed Oil Company, and the evidence further tended to support each and every material allegation of the complaint, unless it be that it fails to show that the death of said Byars was due to any negligent act of the defendant, the Alabama Power Company, or if it did tend to show such fact, that it also showed, without conflict, that the contributory negligence of the said Byars proximately contributed to his own death.

The Tuscaloosa Cotton Seed Oil Company owned and operated at the time of the death of said Byars a ginnery at Gordo, Ala.; that James A. Byars was, at the time he was killed, an employee of said cotton seed oil company, doing the work of a common laborer; that the defendant, the Alabama Power Company, was a public utility corporation engaged in the generation, sale, and distribution of electric power in the town of Gordo, and was furnishing the electric power to the said cotton seed oil company to operate its ginnery; that this electric energy was transmitted to said ginnery by means of wires erected and maintained by the defendant; that the wires entered the main building near the lower borders of the roof, and were strung approximately four feet above the roof on the engine room; that deceased was at work on the roof of the engine room at the time he met his death by electrocution; that the deceased was in the discharge of his duties on the roof with another laborer sweeping off lint cotton at the time he was killed by coming in contact with the electric wires. These wires were at the time charged with a heavy and deadly voltage of electricity. No one saw the accident.

Dick Bailey, the only man on the roof at the time of the accident testified in part: "Mr. Byars was working here on this roof (indicating on picture), known as the engine room, and he was sweeping off lint, cotton and stuff like that (the engine room is the shed built on the side of the main building). There were three wires coming into the gin building which ran above the roof on which Mr. Byars was working, and I was up there with my back turned to Mr. Byars, when I heard some kind of dreadful noise. About that time he hit the floor (roof). I turned and jumped off the building on which I was working and took hold of Mr. Byars. He didn't say anything. I went over across the gin house and hollered for help, and about that time Dr. J.L. Davis came up the ladder. We turned Mr. Byars over and there were a couple of charred places on his finger and thumb, I think of the right hand. The thumb was burned to the bone. The wire above Mr. Byars was stripped of cotton a short piece of from eighteen inches to three feet and there was cotton lint on the wires except at the place where it...