Golson v. W.F. Covington Mfg. Co.

• Decision Date: 16 December 1920
• Docket Number: 3 Div. 432
• Citation: 205 Ala. 226,87 So. 439
• Parties: GOLSON v. W.F. COVINGTON MFG. CO.
• Court: Alabama Supreme Court

87 So. 439

205 Ala. 226

GOLSON v. W.F. COVINGTON MFG. CO.

3 Div. 432

Supreme Court of Alabama

December 16, 1920

Rehearing Denied Jan. 20, 1921

Appeal from Circuit Court, Montgomery County; William L. Martin Judge.

Action by Chloe Golson against the W.F. Covington Manufacturing Company and another for damages for death of plaintiff's minor child. Judgment for the named defendant, after the action was dismissed as against the other defendant, and plaintiff appeals. Affirmed.

Tilley & Elmore, of Montgomery, for appellant.

Weil Stakely & Vardaman, of Montgomery, for appellee.

McCLELLAN J.

The five year old son of the appellant (plaintiff) was killed by electricity. This action for his death was brought against the appellee and the Montgomery Light & Traction Company's receiver. The Light Company settled, and as to it the suit was dismissed. The court gave the general affirmative charge for the remaining defendant, appellee. The one question presented for review is the propriety of this action of the court, which, of course, depends upon the inquiries of law and fact raised by the issues resulting from traversed allegations of the complaint. The demurrer to the first count of the complaint being, confessedly, well taken the complaint finally consisted of counts A to H, inclusive. All of these counts, except that lettered H, declared upon the defendant's breach of duty in negligently failing to so guard a certain electrical apparatus carrying a dangerous current of electricity as to prevent or avoid injury to children, who were accustomed to come on the premises, of which practice appellee had notice or knowledge. Count H, to which demurrer was overruled, will be reproduced in the report of the appeal.

The defendant was a customer of the Light Company. The Light Company agreed to furnish the defendant with electric power to drive its manufacturing plant. According to this contract, the Light Company was to deliver the current at defendant's plant and to furnish and maintain all apparatus and appliances for the purpose. A transformer was installed by the Light Company to step down the current for the defendant's use. The Light Company was an independent contractor in both the furnishing of electric power and in the installation of the apparatus. This transformer was surrounded, insufficiently, phases of the evidence tended to show, by a latticed inclosure. In some way, not accounted for in the evidence, two strands of "hay wire" were "hooked" over the Light Company's high-tension wires entering the transformer; and this foreign wire was passed through the lattice of the inclosure a foot or two outside of the inclosure, where it came in contact with other hay wire lying on the ground. The hooking of this foreign wire over the insulated high-tension wire immediately burned away the insulation at the point of contact and charged the hay wire with the current carried by the high-tension wires. The current passing over the high-tension wires into the transformer was of a voltage above 2,000, a deadly current, against which, one witness testified, only special precaution, not afforded by insulation alone, would protect from death a person touching it. There was evidence authorizing the jury to find to the effects: That this apparatus, including the high-tension wires, was a dangerous instrumentality; that children, either in play or for other purposes, customarily went on that part of defendant's uninclosed premises (on that side of defendant's building) on which the apparatus was set up by the Light Company under its contract with defendant; that defendant either knew the fact of the customary presence of children on the premises, or that the use was so general and long indulged that knowledge or notice thereof on the part of the defendant might be inferred by the jury, notwithstanding the denial shown by the evidence for defendant.

The plaintiff sent her child, on Sunday, the day he was killed, to look for her cow. The child went on the premises of the defendant, and, at a point a foot or two outside of the insufficiently (to state that feature of the controverted issue with favor to appellant) latticed inclosure around the transformer, came into contact with the current passing through the thus charged foreign wire, the deadly current being alone communicated to the child either through its knee or its feet. There is no evidence whatever that the child touched the transformer or the high-tension wires with its hands, or that the child hooked the hay wire over the high-tension wires, or that it was attracted to the place by the apparatus. Referring to the particular negligence charged in counts A to G, inclusive (i.e., negligent failure to guard or inclose the transformer, a dangerous apparatus under the special circumstances averred and shown by phases of the evidence), error in giving the general charge for the defendant cannot be predicated of the idea that the proximate cause of this child's death was the negligence alleged in counts A to G, inclusive. The independent, responsible agency afforded by the hooking of the foreign wire over the high-tension wire was the efficient, intervening legal cause that electrocuted the child. L. & N. v. Quick, 125 Ala. 553, 561, A.G.S. v. Vail, 155 Ala. 382, 387, 388, 46 So. 587.

Count H (reproduced in the report of the appeal) proceeds, under construction, upon a different theory. We repeat that no question of the sufficiency of this count, as upon demurrer is presented. The negligence alleged in count H is not that of the failure to inclose or guard the transformer. Its averments (perhaps too indefinite, equivocal, or inferential in respect of the allegation of facts giving rise to obligation and to duty, if assailed by appropriate demurrer) refer the dereliction alleged to special circumstances, viz.: (a) The presence on defendant's premises of an instrumentality into or through which passed a current of electricity of a dangerous character; (b) the customary presence of children on these premises, a fact known to defendant or who was in possession of information reasonably calculated to inform defendant of such customary use of the...