Gilbert v. Southern Bell Telephone & Telegraph Co.

• Decision Date: 26 April 1917
• Docket Number: 5 Div. 631
• Citation: 200 Ala. 3,75 So. 315
• Court: Alabama Supreme Court
• Parties: GILBERT v. SOUTHERN BELL TELEPHONE & TELEGRAPH CO.

75 So. 315

200 Ala. 3

GILBERT v. SOUTHERN BELL TELEPHONE & TELEGRAPH CO.

5 Div. 631

Supreme Court of Alabama

April 26, 1917

Appeal from Circuit Court, Coosa County; S.L. Brewer, Judge.

Action by Rudolph Gilbert against the Southern Bell Telephone &amp Telegraph Company, for injuries to person and property. Judgment for defendant, and plaintiff appeals. Affirmed.

The complaint alleges that plaintiff was driving an automobile along the upper Wetumpka road, and that along the side of said road defendant maintained a large pole with wires strung thereon, planted securely in the ground between the outside edge of the road, and on the west side of the center of said road at a point about 4 feet from the outside edge of said road, and that the automobile collided with the pole. The pleas were: Contributory negligence, in that plaintiff was driving said automobile at a reckless and unlawful rate of speed in violation of law, wherefore he suffered the injuries complained of. The following charges were given for defendant:

(1) I charge you that if plaintiff was driving his car from 35 to 40 miles per hour at the time of the accident, and had so driven it more than one-fourth of a mile just next before striking said pole, then said driving was negligence on the part of plaintiff.

(6) If the jury believe from all the evidence in this case that plaintiff was driving his car at a rate of speed of more than 30 miles per hour for a distance of one-fourth of a mile next before he struck the pole, then I charge you that such driving was presumed to be reckless, and if you further believe from the evidence that such reckless driving proximately contributed to plaintiff's striking the pole then you will find for defendant.

(3) If plaintiff was driving his car at a reckless rate of speed, and such driving proximately contributed to or resulted in plaintiff's striking said pole, then plaintiff cannot recover.

(9) The defendant had a right to maintain its pole at a point along the margin of the road, provided that said pole was not at a place where it interfered with the usual customary use of the road by the public.

(10) Affirmative charge against finding for plaintiff on the second count of the complaint (the wanton count).

Riddle & Riddle, of Talladega, for appellant.

Geo. A Sorrell, of Alexander City, and Steiner, Crum & Weil, of Montgomery, for appellee.

SAYRE J.

Plaintiff (appellant) was injured by the contact of his automobile with a post of defendant's telephone line which was set on the margin of the road. On the trial of the suit which plaintiff brought, issue being joined on plaintiff's complaint and defendant's pleas of contributory negligence, the jury found for the defendant. Such assignments of error as have been urged in the brief filed for appellant are based upon the court's action in giving certain charges requested by defendant.

In the transcript charge 1 reads as follows: "1--Charge you that the plaintiff was driving his car from 35 to 40 miles per hour," etc. Following appellant's brief, we assume that the charge read thus: "I charge you that if the plaintiff," etc. So reading the charge, we think there was no reversible error in giving it. Section 21 of the act approved April 22, 1911 (Gen.Acts 1911, p. 634) regulating motor vehicles operated upon the public highways of this state, "provided that a rate of speed in excess of thirty miles per hour for a distance of a quarter of a mile shall be presumed evidence of traveling at a rate of speed which is not careful and prudent." We take it ...