City of Dothan v. Hardy

• Decision Date: 20 April 1939
• Docket Number: 4 Div. 66.
• Citation: 188 So. 264,237 Ala. 603
• Parties: CITY OF DOTHAN v. HARDY.
• Court: Alabama Supreme Court

188 So. 264

237 Ala. 603

CITY OF DOTHAN v. HARDY.

4 Div. 66.

Supreme Court of Alabama

April 20, 1939

Appeal from Circuit Court, Houston County; D. C. Halstead, Judge.

Action under Homicide Act by Ila Mae Hardy, as administratrix of the estate of J. L. Hardy, deceased, against the City of Dothan and another. From a judgment for plaintiff, the named defendant appeals.

Affirmed.

T. E Buntin, of Dothan, for appellant.

Martin & Jackson, of Dothan, for appellee.

BOULDIN Justice.

Action against municipality under the Homicide Act. The death of plaintiff's intestate is alleged to have resulted from the negligence of appellant in operating a public utility, an electric light and power plant. This is the second appeal. For former decision, see Hardy v. City of Dothan, 234 Ala. 664, 176 So. 449.

Admittedly J. L. Hardy, plaintiff's intestate, came to his death from contact with wires charged with electric energy of 2,300 volts. Three wires were strung low over the roof of a gin shed, entering the gin house a foot or two above the roof of the shed. Mr. Hardy was engaged, under orders of his employer, the operator of the gin, in repairing the roof of the gin shed. The gravamen of the complaint is that the City of Dothan negligently created or cooperated in creating a dangerous condition in the place of work, which proximately caused the death of the workman.

The plaintiff offered, and the trial court admitted in evidence over objection of defendant, Section 23 of "Safety Rules for the Installation and Maintenance of Electrical Supply and Communication Lines," appearing in "Handbook of The Bureau of Standards, No. 10." This section, by "Table 4--Clearance of Supply Conductors from Buildings," prescribes vertical clearance of 8 feet above the roof for unguarded electric wires with a voltage of 300 to 7500.

Appellant assigns for error the ruling of the court admitting this evidence.

In Layne v. Louisiana Power & Light Co., 161 So. 29, a case quite analogous to this in several aspects, the Louisiana Court of Appeals, Second Circuit, considered this same rule of the "National Safety Code, prescribed by the Bureau of Standards of the United States Government." Its admissibility seems not to have been questioned, and the court appears to treat it as an authoritative rule, whose violation is negligence.

But in Mississippi Power & Light Co. v. Whitescarver et al., 68 F.2d 928, the United States Court of Appeals of Fifth Circuit takes a different view, and holds the refusal to admit such rules free from error.

The court points out that the U.S. Bureau of Standards of the Department of Commerce is created, its functions and powers defined, by Acts of Congress, 15 U.S.C.A. §§ 271-281; that these statutes confer no power on the Bureau of Standards to regulate the placing of electric wires; and these published bulletins, known as "National Electric Safety Code," are issued pursuant to 15 U.S.C.A. § 274, as "information of value to the public."

We concur in the view that such rules are not regulations having the force of law, whose violation is negligence per se.

Does it follow they are not admissible as expert opinion evidence promulgated with government sanction in aid of those engaged in the employment of dangerous agencies to the end that public safety may be promoted, and the hazards incident to present day activities minimized?

The Court of Appeals, as disclosed by the opinion in above cited case, treats these publications as of the same class as medical works and other scientific writings shown to be authority on the subject, and rejects same on the grounds upon which such authorities are rejected under the rule said to prevail "elsewhere generally except in Alabama."

The Alabama Rule dates back to Stoudenmeier v. Williamson, 29 Ala. 558, opinion by Justice Stone. After reviewing authorities, the decision proceeds:

"We think that medical authors, whose books are admitted or proven to be standard works with that profession, ought to be received in evidence. Should such works be obscure to the uninitiated, or should they contain technicalities, or phrases not understood by the common public, proper explanation should be offered, lest the jury be thereby misled. That was done in this case. The opinions of physicians, as experts, touching disease and the science of medicine, are, under all the authorities, admissible in evidence. If we lay down a rule which will exclude from the jury all evidence on questions of science and art, except to the extent that the witness has himself discovered or demonstrated the correctness of what he testifies to, we certainly restrict the inquiry to very narrow limits. The brief period of human life will not allow one man, from actual observation and experience, to acquire a complete knowledge of the human system, and its diseases. Professional knowledge is, in a great degree, derived from the books of the particular profession. In every step the practitioner takes, he is, perhaps, somewhat guided by the opinions of his predecessors. His own scientific knowledge is, from the necessities of the case, materially formed and moulded by the experience and learning of others. Indeed, much of the knowledge we have upon all subjects, except objects of sense, is derived from books and our associations with men.

"It is the boast of this age of advancing civilization, that, aided and facilitated by the printer's art, the collected learning of past ages has been transmitted to us. Shall we withhold the benefits of this heritage from the contests of the courtroom? We think not. Evidence drawn from this source being admissible, the question arises, in what form is it to be laid before the jury? Are opinions, derived from the perusal of books, and deposed to by witnesses, safer guides for that body than the books themselves are?"

Adverting by way of illustration to the science of law, he observes that the courts look to the evidence of reported cases and standard elementary writers, and concludes: "Under our system, questions of law are exclusively for the court, and with them the jury have nothing to do. All inquiries respecting any other science are questions of fact, for decision by the jury. Can that be a sound rule, which, in the determination of a question involved in one science, allows to the trying body the light shed upon it by the writings of its standard authors, and withholds such lights from controversies respecting all other sciences? We think not.--See Attorney-General v. Glass Plate Company [1 Anstr. 39] supra; also, Inge v. Murphy, 10 Ala. [885] 897."

This case has been followed throughout our jurisprudence. Merkle v. State, 37 Ala. 139; Bales v. State, 63 Ala. 30; Oakley v. State, 135 Ala. 29, 33 So. 693; Birmingham Ry., Light & Power Co. v. Moore, Ella, 148 Ala. 115, 42 So. 1024; Barfield v. South Highlands Infirmary, 191 Ala. 553, 68 So. 30, Ann.Cas.1916C, 1097; Anderson v. State, 209 Ala. 36, 95 So. 171; Carraway v. Graham, 218 Ala. 453, 118 So. 807; Batson et al. v. Batson et al., 217 Ala. 450, 117 So. 10; Watkins v. Potts, 219 Ala. 427, 122 So. 416, 65 A.L.R. 1097.

Our cases have dealt generally with medical authorities, but not exclusively so. Adler v. State, 55 Ala. 16.

In Alabama Power Co. v. McIntosh, 219 Ala. 546, 550, 122 So. 677, "The National Underwriters Electrical Code," inaccurately called the "National Electrical Code," was on proof that it was the standard used by all competent wiremen, held to be evidence of negligence in installing interior floor fixtures of a type forbidden by such Code.

The reasons behind the rule laid down by Justice Stone are not peculiar to works on medical science. If it be said, the science of electricity is not an exact science, that it is a growing science wherein former views may become obsolete, what is to be said of medical science, dealing with problems physical and mental?

It is quite true the Alabama rule is at variance with the rule generally, if not universally prevailing elsewhere. Probably no better statement is to be found of the reasons behind the rule rejecting scientific treatises, including medical works, than in the text of Ruling Case Law, Evidence, Vol. 10, § 364.

That such statements are not sworn to is met under our rule by sworn evidence of an expert witness that such treatise is esteemed by the professions as good authority on the subject. A perusal of the cases discloses the courts have much infringed upon and complicated the rule of rejection when confronted with its application. Our statute, Code, § 7720, is a statutory approval of this rule. See, also, Harris v. Nashville C. & St. Louis R. Co., 153 Ala. 139, 44 So. 962, 14 L.R.A.,N.S., 261.

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