Dwight Mfg. Co. v. Word

• Decision Date: 10 May 1917
• Docket Number: 7 Div. 833
• Parties: DWIGHT MFG. CO. v. WORD.
• Court: Alabama Supreme Court

75 So. 979

200 Ala. 221

DWIGHT MFG. CO. v. WORD.

7 Div. 833

Supreme Court of Alabama

May 10, 1917

Appeal from City Court of Gadsden; John H. Disque, Judge.

Action by James Word against the Dwight Manufacturing Company for personal injuries caused by electricity. Judgment for plaintiff, and defendant appeals. Transferred from the Court of Appeals under section 6, Acts 1911, p. 449. Reversed and remanded.

The case was submitted to the jury on counts 4, 5, 6, and 7, and the averment of fact common to all of them is as follows:

Count 4. The plaintiff claims of defendant corporation the further sum of $5,000 as damages for that on, to wit, the 11th day of June, 1914, plaintiff was in the employ of the Southern Bell Telephone & Telegraph Company as a lineman that the Southern Bell Telephone & Telegraph Company was then engaged in operating a telephone system in Gadsden, Ala., and contiguous territory thereto, and a part of its plant consisted in wires strung along Tuscaloosa street, in said city of Gadsden, Ala.; said telephone wires were stretched from one pole to another pole, and attached to cross-arms on insulators arranged for that purpose, and said cross-arms were attached to said telephone posts in the usual manner of constructing such wires; the posts of said telephone company were set along the northern margin of said Tuscaloosa street. Plaintiff further avers that defendant maintained and operated a wire heavily charged with a dangerous current of electricity, which was very likely to cause death or serious bodily harm if it should come in contact with the human body defendant's said wire or wires so charged were also strung from one pole to another, and attached to cross-arms on its posts, which posts were also along the northern margin of Tuscaloosa street, in Gadsden, Ala. Plaintiff further avers that the posts of said telephone company and the posts of defendant were maintained and operated in such close proximity to each other, and in some places along said street substantially in the same line with each other, that linemen of said telephone company, in the proper discharge of the duties of their employment, were very likely to come in contact with the heavily charged electric wire of defendant and plaintiff avers that these wires of the telephone company had been maintained and operated in the manner above averred for more than three years at the time this plaintiff was injured as hereinafter set out. Plaintiff further avers that his duties as lineman of said telephone company required him to repair, adjust, clear, and keep in working order the telephone lines, and to do this it was very often necessary for him to get among the wires of the telephone company where they were strung from one pole to another; that on said date to wit, the 11th day of June, 1914, plaintiff's duties as lineman of said telephone company required that he get up among the telephone wires strung along said Tuscaloosa street for the purpose of remedying some condition of said wires and that while he was thus in the proper discharge of the duties of his employment as lineman of said telephone company, and while he was at a place he had a right to be, he came in contact with the wire of the defendant, which defendant maintained and operated as aforesaid in close proximity to the said telephone wires, and which said defendant's wire or wires were charged with dangerous current of electricity, and as a proximate consequence plaintiff was severely shocked, caused to fall and be bruised, was burned on the left side of his body, caused to suffer much physical and mental pain, caused to be confined to the hospital for some time, lose much time from earning wages, put to great expense in having his injuries treated, and is permanently injured and rendered less able to earn a living, hence this suit. The count then avers that plaintiff's injuries were the proximate result of defendant's said negligence in operating and maintaining said wire charged with the dangerous current of electricity in such close proximity to the said telephone wires that employés of said telephone company, in the proper discharge of their duties, were likely to come in contact therewith. Count 5 imputes the injuries to defendant's negligence in negligently causing said wire to be charged with a current of electricity which was dangerous to human life, at said time and place, when it knew that the employés of said telephone company were likely to come in contact therewith. The negligence imputed in count 6 is that defendant negligently failed to keep said wire, which was charged with the dangerous current of electricity, properly insulated, so as to disarm it of danger to persons coming in contact therewith, as did plaintiff as aforesaid. Plaintiff's injuries in count 7 are imputed to defendant's conduct in negligently allowing or permitting its said wire, which was charged with the dangerous current of electricity, to sag down among the wire of the telephone company to where it was likely to come in contact or become in contact with by the employés of said telephone company, while rightfully in the discharge of their duties as linemen, as plaintiff was at the time of his injuries.

Numerous grounds of demurrer were filed to these counts and overruled. Defendant filed a number of special pleas to each count separately, as follows:

(9) Contributory negligence proximately contributing to his injury, which negligence consisted in this: The wires of said telephone company were strung about two feet below the wire of defendant, and plaintiff negligently came in contact with defendant's wire or wires by climbing a tree in the margin of said Tuscaloosa street or road, and going above the wires of the telephone company for a distance of some two feet or more, and negligently came in contact with the wire or wires of defendant, which were in open view to plaintiff,

and were known by plaintiff to be strung along said street at the time and place of plaintiff's injury above the wires of the telephone company, and were known by plaintiff to be high voltage electric wires, likely to inflict serious bodily injury on him in case he came in contact therewith.

(15) Further answering count 4 of the complaint, defendant says plaintiff was himself guilty of negligence which proximately contributed to his injury, which negligence consisted in this: That plaintiff, with knowledge that defendant's wires were strung along said street about two feet above the wires of the telephone company at the time and place of his injury, and with knowledge that they were high voltage electric wires, likely to inflict on him serious bodily injury in case he came in contact therewith, climbed a tree in the northern margin of said street, and went up above the wires of the telephone company, and assumed a position in dangerous proximity to defendant's wire or wires, with knowledge, of the danger of contact therewith and probable injury therefrom, when it was unnecessary for him to do so in order to get among the wires of the telephone company or to properly discharge the duties of his employment with the telephone company, and when he could have assumed a safe position in said tree out of or beyond danger of contact with defendant's wire or wires, and plaintiff knew of such safe position, but nevertheless he negligently failed to assume such safe position, and as a proximate consequence thereof he came in contact with defendant's said wire or wires and was injured.

Plea 18, as amended, is: For further answer to the entire complaint, and each count thereof, defendant says that the Southern Bell Telephone & Telegraph Company, plaintiff's employer at the time of his injury, and defendant are jointly liable to plaintiff for the injury sustained by him, if defendant is liable at all; that the two companies named are jointly responsible for the conditions complained of in the complaint; that plaintiff's cause of action was satisfied and extinguished long before the bringing of this suit by the receipt by plaintiff from said telephone company of full compensation for his injury or compensation, accepted by plaintiff as full compensation, and plaintiff executed a release to said telephone company, and said release extinguished his entire cause of action and claim for damages arising from or growing out of his said injury. Said release is in words and figures as follows:

"Election of Employee, under Plan for Employees' Pensions, Disability Benefits and Death Benefits.

"In consideration of the compensation payable to me by the Southern Bell Telephone & Telegraph Company, under its plan for Employees' Pensions, Disability Benefits and Death Benefits, I elect, in accordance with the provisions contained in paragraph 26 of § 9 of the Plan, to accept the benefits to which I am entitled under the 'Plan' in lieu of and in release of any claims and demands which I might otherwise have against said company on account of injuries sustained by me at Gadsden, in the state of Alabama, on June 11, 1914.

"[Signed] J.W. Word.

"Signed in my presence this the 1st day of August, 1914, by J. W. Word, after above was read aloud to him.

"[Sd.] Jack Abbot.

"[Sd.] J.C. Wilcox."

Defendant avers that plaintiff, James W. Word, received under his said election and the release above set forth the sum of, to wit, $363.49, and the retention of his job, or employment with said telephone company during the period of his life.

Demurrers were sustained to all these special pleas except 15 and 18 and the trial was had upon these special pleas and the general issue. It was a disputed question whether the telephone company's wires or the defendant's wires were first erected along Tuscaloosa avenue at the place of accident to plaintiff. It was a disputed...