Citizens' Light, Heat & Power Co. v. Lee

• Decision Date: 13 February 1913
• Parties: CITIZENS' LIGHT, HEAT & POWER CO. v. LEE.
• Court: Alabama Supreme Court

62 So. 199

182 Ala. 561

CITIZENS' LIGHT, HEAT & POWER CO. v. LEE.

Supreme Court of Alabama

February 13, 1913

Rehearing Denied April 23, 1913

Appeal from Circuit Court, Montgomery County; W.W. Pearson, Judge.

Action by Eugenia S. Lee, as administratrix against the Citizens' Light, Heat & Power Company, for damages for the death of her intestate. Judgment for plaintiff, and defendant appeals. Affirmed.

Count 2 is as follows: The plaintiff, as administratrix of the estate of J.H. Lee, Jr., deceased, claims of the defendant the sum of $25,000 as damages, for that, to wit, on November 26,1910 the defendant was engaged in the business of operating in the city of Montgomery, Ala., an electric lighting plant or company, and on, to wit, said day and date, in said state and county, plaintiff's said intestate was a servant or employé of the defendant, in the service or business of the defendant, and then and there, while in the performance of his duties as such servant or employé, he was upon a certain pole, then and there supporting a number of wires, one of which wires was then and there charged with electricity, and while plaintiff's said intestate was upon said pole as aforesaid in the performance of his duties, a current of electricity from said wire passed into his body, shocking him and causing him to fall to the ground or pavement below, and thereby, as a proximate result thereof, he died. And plaintiff avers that her said intestate received said injuries as a proximate result and consequence of a defect in the condition of the ways, works, machinery, or plant connected with or used in the business of defendant, which defect arose from, or had not been corrected or discovered owing to, the negligence of defendant, or of some person in the service of defendant and intrusted with the duty of seeing that the ways, works, machinery, etc., were in proper condition, in this: That the said wire, which was charged with electricity as aforesaid, was defective. Count 3 is the same as 2, as to the method of the infliction of the injury and avers the negligence of a certain person whose name is J.N. Jackson, who was then and there in the service or employment of defendant, and who then and there had superintendence over plaintiff's intestate intrusted to him, while in the exercise of such superintendence, which negligence consisted in the said Jackson, while in the exercise of such superintendence, negligently ordering and instructing plaintiff's intestate to go upon said pole knowing at the time that said place where he ordered said intestate to go as aforesaid was dangerous, and did not notify or warn said intestate of said danger, which said dangers were latent and unknown to intestate. Count 4 is the same as 3, except that it alleges that intestate at the time of said injury was bound to conform to the orders of said Jackson and did conform, and as a result of having so conformed, was injured, and that the negligence consisted in Jackson's ordering plaintiff's intestate to go upon said pole, knowing at the time of giving said order that said pole or wires attached thereto were charged with electricity and that it was dangerous to go upon said pole, and did not warn plaintiff's intestate thereof. Count 5 alleges the negligence of the defendant in failing to provide intestate with a reasonably safe place in which to do his work under his employment.

The demurrers to the second count raise the question that it is not alleged or shown that the pole upon which the electric wires were strung was a part of the ways, works, etc.; and that it was not alleged or shown that the wire alleged to have been charged with electricity was a part of the ways, works, etc.; and that it is not shown whether said line was a part of the ways or part of the works, or part of the machinery, or part of the plant of the defendant; and that it is not alleged in what manner the said wire was defective, and no causal connection is shown between the defect complained of and the injury. To the third count, that it fails to state a cause of action; that it is not shown what act of negligence the person intrusted with superintendence was guilty of. The fourth count same grounds as the third, and that it fails to allege that plaintiff's intestate did not know the danger of going upon the pole, and fails to allege that the danger was not apparent or obvious, and it is not shown that the order contributed to the injury complained of. To the fifth count, that it is not shown in what particular the defendant failed to provide plaintiff's intestate with a reasonably safe place to work, etc. The defense was that the intestate was an experienced lineman at the time of the injury and at the time he was instructed to climb the pole, and that it was his duty to examine said pole for the purpose of determining whether or not it could be safely worked upon, and that he failed and neglected to make the examination; also, that the ordinary duty as a lineman required the stringing of high voltage wires upon poles, and that the danger of falling was one of the risks incident to his employment, and that the danger of coming into contact with such wires was also a risk incident to the employment. There were several other pleas not necessary to be set out.

The following charges were refused to the defendant:

(A) If the jury believe from the evidence that plaintiff's intestate was himself guilty of negligence which proximately contributed to his injury, and that his said negligence consisted in this, that after knowledge that the said pole was strung with a large number of electric light wires running in different directions and across said pole, some of which were charged with high voltage power of electricity, and which were not perfectly insulated, and that coming in contact with said wires without himself being fully insulated was highly dangerous, and with the knowledge that if he came in contact with the said wires without it or himself being fully insulated that injury would result to him, nevertheless plaintiff's intestate negligently went upon said pole, and negligently came in contact with the said wire without himself or said wire being fully insulated, and as a proximate consequence of which he fell from said pole and was injured, plaintiff cannot recover upon either counts 1, 2, or 5 of the complaint.

(C) If the jury believe from the evidence that the pole upon which plaintiff's intestate was injured was obviously dangerous, and plaintiff's intestate knew the said danger at the time he climbed upon the same in accordance with the orders of the defendant's superintendence, and thereby proximately contributed to his injury, plaintiff cannot recover under the second or third counts of the complaint.

(G) If the jury believe from the evidence that plaintiff's intestate was the person in defendant's employment, whose duty it was to report any defect of said pole to the defendant, and he negligently failed to perform that duty, and as a result of such failure he was injured as a proximate result of his own negligence, plaintiff cannot recover.

(E) If the jury believe from the evidence that plaintiff's intestate was a man experienced in doing line work, and experienced in handling wires heavily charged with electricity, and the defects complained of in said count were obvious to plaintiff's intestate, and therefore plaintiff's intestate knew or was charged with knowledge of the dangerous condition, and with knowledge of said defect and dangerous condition he negligently climbed upon said pole and came in contact with said defective wire, and thereby proximately contributed to his own injury, plaintiff cannot recover on either count.

(13) The court charges the jury that, under the evidence in this case, if the plaintiff is entitled to recover at all, she cannot recover more than nominal damages.

The oral charge excepted to is as follows: If, however, you reasonably find that he would have given her a greater sum, that he was young, sober, industrious, apt, and that his value from an earning capacity increasing, you might take that into consideration along with the other evidence, and say what is just and right under the evidence in this case; this portion of this charge having been given in connection with the rule as to expectancy, and the amount of the verdict based on his saving capacity.

Ball & Samford, of Montgomery, for appellant.

Hill, Hill, Whiting & Stern, of Montgomery, for appellee.

MAYFIELD J.

This is an action by an administratrix to recover damages for the wrongful death of her intestate. It is brought under the homicide provision of the Employers' Liability Act (Code, § 3912), and not under the statute known as the Homicide Statute (Code, § 2486). As has been repeatedly decided by this court, the measure of damages, in actions brought under the one, is entirely different from that in actions brought under the other, statute. Under the one the damages are compensatory only, while under the other they are punitive only. That there is no reason for such a distinction has been reiterated by this court; but these statutes were so construed and have been repeatedly readopted without change and with this construction placed upon them. The intestate in this case was a lineman in the employ of the defendant electric company and was working in that capacity at the time he met his death, which was in an attempt to climb an electric pole upon which the electric wires of the employer were strung. In some respects this case is similar to the Sanges Case, reported in 169 Ala. 353, 53 So. 176, Ann.Cas.1912B, 461.

Numerous counts were filed in this case unnecessary to be noticed for the reason that they were eliminated from the case, and eliminated upon...