Demopolis Telephone Co. v. Hood

• Decision Date: 23 October 1924
• Docket Number: 2 Div. 834
• Citation: 212 Ala. 216,102 So. 35
• Parties: DEMOPOLIS TELEPHONE CO. v. HOOD.
• Court: Alabama Supreme Court

102 So. 35

212 Ala. 216

DEMOPOLIS TELEPHONE CO. v. HOOD.

2 Div. 834

Supreme Court of Alabama

October 23, 1924

Rehearing Denied Nov. 27, 1924

Appeal from Circuit Court, Marengo County; John McKinley, Judge.

Action for damages for personal injury by Wiley S. Hood against the Demopolis Telephone Company. From a judgment for plaintiff defendant appeals. Affirmed.

B.F Smith, of Birmingham, and Huey & Welch, of Bessemer, for appellant.

Pettus Fuller & Lapsley, of Selma, and I.I. Canterbury, of Linden, for appellee.

BOULDIN J.

The action is to recover damages for personal injuries. The complaint shows that defendant's telephone wire was strung across and over a railroad track, and that plaintiff, in course of his employment, had occasion to pass under the wire, and, in so passing, while standing erect upon the top of a freight car, he came in contact with the wire, and was injured.

It is averred that the wire was so low as not to clear a man of plaintiff's height, standing erect on the top of a car of the size on which he was riding.

After setting out these conditions, it is charged in general terms that the defendant negligently constructed said wire too low, or negligently allowed the same to become too low, which negligence proximately caused plaintiff's injuries.

This complaint sets forth the conditions from which the duty of care toward plaintiff arose. Such duty being shown, a general averment of negligence is sufficient. Postal Telegraph Cable Co. v. Jones, 133 Ala. 217, 32 So. 500; Western Union Telegraph Co. v. Jones, 190 Ala. 70, 66 So. 691.

There was no need to aver that the plaintiff or the car on which he was standing was not of unusual height. In placing wires across a railroad track, known to be used as it was used, the duty to provide ample clearance is not limited to the man of average height while riding on a car of usual size. The duty is to the tall man as well as the low, and whether riding on a high or low car in common use.

If the men and the car on which he was riding reached such unusual or unprecedented height that in the exercise of reasonable care the danger could not have been foreseen, such matter was defensive. The duty is measured by the danger of the situation. A wire across a railroad track is manifestly dangerous if hung so low as to catch a man, passing under it with the speed of a train, whether on the main line or a spur track. One element of the danger is that a wire does not readily attract attention. Ample clearance may be easily provided without substantial cost. There is, in such case, the duty to ascertain what is a sufficient clearance. A failure so to do, and the placing of a wire in such position that a man rightfully there comes in contact with it, raises a presumption of negligence. The doctrine of res ipsa loquitur applies. Ala. City G. & A. Ry. Co. v. Appleton, 171 Ala. 324, 54 So. 638, Ann.Cas.1913A, 1181. The complaint disclosed that at the time of his injury plaintiff was an employee of Southern Railway Company, and in the discharge of his duties for that company in the use of the track. These facts did not make it necessary for the plaintiff to aver or prove that the Southern Railway Company had a right of way prior and superior to that of the defendant.

The construction and operation of a railroad and telephone line may rightfully be had over the same ground, so long as the one does not infringe upon the right of the other. The duty to plaintiff did not grow out of his relation to Southern Railway Company. That relation was merely the occasion which brought plaintiff within the class of persons rightfully passing under the overhead wire. The duty to provide against danger was a duty to plaintiff personally, and not to his employer, so far as this action goes. The case is not different in principle from that of stringing a wire over or across a public highway. In the latter case the duty to provide against danger is due to any person in the use of the highway, while in the case at bar the duty is to any person of the class rightfully using the right of way as it was used.

It follows that no failure of duty on the part of Southern Railway Company to provide a safe place of work for its employees would acquit the defendant of its duty in the premises. If there was a working arrangement between this defendant and any employee of the railroad company, other than this plaintiff, by which the defendant was to be notified of any defect in the construction of its overhead wires, such arrangement would merely constitute such employee the defendant's agent in that regard, and any negligent failure to give notice or remedy the defect would be a failure of duty on the part of defendant.

The liability for injuries resulting from concurring negligence of two or more tort-feasors is several. Neither can defend for the failure of duty on the part of the other. The sole question is: Was the negligent failure of duty on the part of the defendant the sole or concurring proximate cause of the injury? If so, the defendant becomes liable for full compensatory damages. The trial court very properly, in such case, refuses any testimony tending to divert the attention of the jury to some wrongful act or negligence of a party not sued. Our Workmen's Compensation Law, Acts 1919, p. 206, section 32, makes provision in certain cases for a third party to have its benefits.

Like all claims under part 2 of that act, the claimant must become the actor and make a showing of his right to its benefits. It was not necessary for plaintiff to negative the terms of section 32 of the Compensation Act. Neither would a right of action against the Southern Railway Company under the Federal Employers' Liability Act (Comp.St. §§ 8657-8665) constitute any defense to this action.

The evidence, without dispute, shows that plaintiff was, at the time of his injury, an employee of the Southern Railway Company, and that certain of plaintiff's witnesses were such employees. The witness Jones testified that he supposed that company was to pay his way to court, and that he was ordered there. This sufficiently disclosed any interest of the witness as affecting his credibility. The further efforts to show voluntary activity of the railroad company or its employees in aiding to procure the X-ray photograph, or that plaintiff had filed a claim against that company, tended to divert the issue to one of liability of that company for the injury. There was no error in refusing this testimony.

An X-ray photograph was admitted in evidence for plaintiff. The evidence as to the taking of the photograph and what its reading disclosed was by deposition. This testimony tended to show the photograph was taken by a qualified expert; that it was read by the witnesses qualified by experience and training to do so;...