Dobbins v. Western Union Telegraph Co.

• Decision Date: 18 November 1909
• Parties: DOBBINS v. WESTERN UNION TELEGRAPH CO.
• Court: Alabama Supreme Court

50 So. 919

163 Ala. 222

DOBBINS v. WESTERN UNION TELEGRAPH CO.

Supreme Court of Alabama

November 18, 1909

Appeal from Circuit Court, Bibb County; B. M. Miller, Judge.

Action by A. P. Dobbins against the Western Union Telegraph Company. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

Plaintiff's right of action is grounded upon the fact that the defendant telegraph company left standing for several years in or near the sidewalk in the town of Centreville, Ala., the stump of a telegraph pole about three feet high, which had been broken or cut off, and over which plaintiff tumbled and fell in endeavoring to cross from one side of the street to the other at night, all of which was appropriately set up in the several counts of the complaint.

Plea 7 is as follows: "Plaintiff himself was guilty of contributory negligence, which proximately caused his injury in this: Plaintiff knew of the presence of said stump or post, and with said knowledge walked in the nighttime where said post was, and where he could not see said post, and collided his body therewith, when by the use of ordinary care and prudence he could have walked past said post, and by pursuing the ordinary path used by pedestrians, at the place where said post was, have avoided colliding with the same."

Plea A reads: "Plaintiff knew of the presence of said post, and with said knowledge attempted to walk during the nighttime when it was so dark he could not see said post, in close proximity to the same, and without necessity therefor, there being a well-traveled crossing some distance, to wit, several feet, from said post, of which the plaintiff had knowledge and which plaintiff knew was safe and secure for the passage of pedestrians; and in so deviating from the well-traveled way plaintiff thereby assumed the risk of being injured by coming in contact with said post."

Lavender & Thompson, for appellant.

Denson & Denson, for appellee.

McCLELLAN J.

There can be no doubt that the act or omission of the appellee in leaving for many years, within the limits of a public street in the town of Centreville, an obstruction created by sawing off a telegraph pole three feet above the ground, was such negligence as to render it liable for injury to a traveler on the street, unless the traveler was himself guilty of negligence contributory to his injury. Postal Tel. Co. v Jones, 133 Ala. 217, 32 So. 500.

The important question presented is whether the appellant was, as a matter of law, guilty of contributory negligence, barring his recovery, as was ruled below. The appellant insists that the inquiry of contributory negligence vel non was for the jury. We approve the contention of the appellant. This court, in City of Montgomery v. Wright, 72 Ala. 411, 47 Am. Rep. 422, announced conclusions which, in our opinion, control the decision of the question on this appeal. There it was contended that because the plaintiff undertook to traverse, in the nighttime, a sidewalk in a public street, which had been rendered in part unsafe, and of which fact the plaintiff had knowledge, his act was per se negligent, and barred a recovery for injury resulting from his falling into the "washout." It appeared that the plaintiff was familiar with the defective condition of the sidewalk, and its location and character. It also appeared that the space between the inside line of the sidewalk and the nearest thereto edge of the "washout" was seven feet. It was over this seven feet the plaintiff undertook to travel. After stating the well-known rule prevailing with us as to when contributory negligence vel non is, on the evidence, a question of law only, and hence for the court, and after adverting to the general doctrine that negligence is ordinarily a mixed inquiry of law and fact, it was held that the plaintiff was not, prima facie, guilty of negligence in ordering his course on the occasion as above indicated. The evidence showed, as in this case, that the course taken was one generally used by the public in traversing Bell street, and that, so far as that record revealed, no injury had attended such general use. The court there, very properly we think, accorded weight to the fact that the plaintiff was familiar with the situation with reference to the defect in the sidewalk, its location, and necessarily its danger, if he encountered it.

The circumstances of the case at bar require the application of the rulings made in Wright's Case. Here the familiarity of the appellant with the situation created by the "stump" left by the appellee in the street was proven conclusively. He had passed it for years. It was just to the side of a path leading, angling, across the street. The path was of common use by those having the purpose to cross that street and to go in the direction appellant was on the occasion, headed. Had the appellant not veered from the path, he would not have collided with the obstruction. It was undisputably shown that appellant undertook to govern his steps, so as to keep the path, by reference to a tree and telephone pole, seen by him on the same side of the street as the "stump," and the relation of which, in point of location, to the tree and telephone pole, were known to him. H...