Cullman-Jefferson Counties Gas Dist. v. Reeves

• Decision Date: 02 February 1967
• Docket Number: 6 Div. 342,CULLMAN-JEFFERSON
• Citation: 281 Ala. 67,199 So.2d 78
• Parties: COUNTIES GAS DISTRICT v. W. C. REEVES.
• Court: Alabama Supreme Court

Page 78

199 So.2d 78

281 Ala. 67

CULLMAN-JEFFERSON COUNTIES GAS DISTRICT v. W. C. REEVES.

6 Div. 342.

Supreme Court of Alabama.

Feb. 2, 1967.

Rehearing Denied June 1, 1967.

St. John & St. John, Cullman, for appellant.

Fred Folsom, Cullman, Roscoe Hogan and Jenkins, Cole, Callaway & Vance, Birmingham, for appellee.

SIMPSON, Justice.

This is an appeal from a judgment rendered on a jury verdict in the Circuit Court of Cullman County. W. C. Reeves filed the action under the wrongful death statute for the death of his thirteen-year-old son, who was killed on February 16, 1962. The suit when finally tried went to the jury against defendants James Fred Branch and the Cullman-Jefferson Counties Gas District, a corporation. The jury returned a verdict in favor of plaintiff against both defendants in the amount of $17,500. The counts on which the verdict was returned in essence charge that the plaintiff's son was killed when struck by an automobile driven by James Fred Branch; that Branch hit the Reeves boy when he swerved or turned his car suddenly to avoid a dangerous defect in the street which the appellant Gas Company had failed to properly repair and that the death was proximately caused by the combined and concurring negligence of both defendants.

Mr. Branch has not appealed. Following the judgment the appellant filed motion for a new trial which was denied. This appeal followed.

Assignments of Error 1 through 4

These four assignments deal with the court's failure to give at the request of defendant-appellant the affirmative charge with and without hypothesis. In reviewing the propriety of the court's action in this regard we are compelled to view the entire evidence in its most favorable aspect for the plaintiff-appellee and must allow such inferences as the jury was free to draw therefrom, and not such inferences as this court might think more probable. Alabama Power Co. v. Smith, 273 Ala. 509, 142 So.2d 228.

As we understand the argument of appellant, it is that the plaintiff failed to prove actionable negligence on the part of the Gas Company in that there was no evidence tending to show that the Gas Company owed any duty to the plaintiff's intestate, and if so, that there was no evidence tending to show that the death of plaintiff's intestate was proximately caused by any negligence on the part of the Gas Company.

Viewing the evidence most favorably to the plaintiff, as we are constrained to do under the foregoing rule of long standing, we are of the opinion that there are tendencies of the evidence which support a reasonable inference that the accident which killed this young boy was caused by the fact that there was a large depression in the street along which he was walking at the time; that this depression had been there for a considerable period of time; that it was caused by the Gas Company and that if not the Gas Company has and maintains in the street certain valve boxes around which there was a depression causing the top of the boxes to be above the level of the ground. There was evidence to the effect that the Gas Company had been called upon to repair the condition of their boxes or otherwise remedy the condition existing. The individual defendant Branch testified that at the time of the accident he was driving about 40 to 45 miles per hour and that he went around the hole on the right and tried to avoid the hole but that his car hit something and bounced. Other witnesses testified that they saw the Branch car bounce and swerve after hitting the hole and then he hit the boy who was walking along the curb. There is evidence in this case from which the jury could have found that the Gas Company was negligent in failing to remedy the condition caused by their boxes in a heavily traveled street and to guard against the injury to persons using that street. We are unimpressed with the appellant's argument to the effect that the Gas Company had no duty to maintain the road and that that responsibility rested with the State or the municipal authorities. We have long been committed to the proposition that one using a public way for its own purposes, even with permission, must use due care to avoid injury to the traveling public. 25 Am.Jur., Highways.

We have carefully read the evidence in this case. We are convinced that the trial court properly submitted the issues to the jury. There is unquestionably here evidence from which the jury could have found that the Gas Company allowed its valve boxes to project beyond the surface of the street, that it had notice that there was a depression in the street, caused by the ground sinking around its boxes, that it had in the past made repairs around its boxes, that this condition along with the conduct of the defendant Branch proximately caused the injury to the plaintiff's intestate. We find no error in the court's refusal to grant the affirmative charges requested by the Gas Company.

Assignments of Error 5 and 6

Assignment of Error No. 5 complains of the court's refusal to give the following requested charge:

"I charge you Gentlemen of the Jury, that the 'proximate cause' of an injury is the primary moving cause without which it would not have been inflicted, but which, in the natural and probable sequence of events and without the intervention of any new or independent cause, produces the injury."

Assignment No. 6 complains of the refusal of the following requested charge:

"I charge you, Gentlemen of the Jury, that if you are reasonably satisfied from the evidence in this case that some independent agency has intervened and has been the immediate cause of the injury resulting in Roger Dale Reeves' death, even though a party is guilty of negligence in the first instance, that party is not responsible.'

The court orally charged the jury as follows:

'Now,...