Home Telephone Co. v. Fields

Citation43 So. 711,150 Ala. 306
PartiesHOME TELEPHONE CO. v. FIELDS.
Decision Date17 April 1907
CourtSupreme Court of Alabama

Appeal from Circuit Court, Mobile County; Samuel B. Browne, Judge.

Action by Henrietta Fields, administratrix of Robert Isble deceased, against the Home Telephone Company, for the death of the deceased. From a judgment for plaintiff, defendant appeals. Affirmed.

Pillans Hannaw & Pillans, for appellant.

Gregory L. & H. T. Smith, for appellee.

HARALSON J.

The plaintiff's evidence tended to show, without dispute that Robert Isble, the son of plaintiff, while walking along Davis avenue, in a suburb of Mobile, walked beneath an oak tree, on the edge of a public road, and touched a wire fence that was nailed to the tree, and was killed by an electric shock therefrom.

The evidence of the plaintiff showed, that a trolley pole of the Mobile Light & Railroad Company projected into the branches of this tree; that through this trolley pole ran an eye-bolt that supported the span wire that held up the trolley wire which was heavily charged with electricity; that on the outer edge of this bolt, and on the outside of the trolley pole was a nut, which had a round and a square face, the round face being towards the pole, and between the nut and pole was a washer; that the defendant, the Home Telephone Company, had formerly maintained a telephone system to Toulminville by means of a number of wires which were suspended on poles, and which ran along Davis avenue through the branches of said oak tree; that this telephone system had been abandoned some months before the accident, and the wires and poles had, generally speaking, been removed by defendant, but several of these wires had been left dangling down through the branches of said tree. One witness testified that one of these wires was left dangling from a pole to which the wires had been attached, and others testified, that they were left hanging in the branches of the tree but were detached from the poles. It was further shown for the plaintiff, that, at the time of the accident, one of these wires extended from the branches of the tree and was jammed between the washer and nut already described, so tightly that the employé of the Mobile Light & Railroad Company, who removed the wire, could not jerk or swing it loose from the ground, and had to climb the pole with a ladder and knock it loose from behind. Several witnesses testified,--some of them, that they had seen wires hanging from this tree for some time before the accident, some of them, that they had noticed them for about a week before, and some, that they had noticed them as early as the preceding spring. One of them testified, that the trolley pole and the tree were about the same height, and that the bolt and nut were only a few feet below the top of the pole, and one of them, that the wire was lying across the top of the tree, and thence down across the nut and washer, and others still, that the wire extended from the branches of the tree down through the washer. One witness described the telephone wire as extending from the nut and bolt, so as to touch the wire fence, and one, that when he found it, just after the accident, the telephone wire was "kind of hooked to the fence as though somebody had bent the end of it to keep it from swinging," and when a trolley is properly suspended, the span wire is dead and not a live wire, and this span wire should be properly attached to the trolley by means of a bell which should be insulated, but, in this instance, the trolley wire ran through the bell to the span wire and out to the eye-bolt where the telephone wire was jammed and communicated in this manner to the wire fence.

It was admitted that the defendant company was, at the time of the accident, doing business in and around Mobile as a telephone company and serving the public in the maintenance of a telephone system.

The defendant introduced evidence tending to show, that before the accident they pulled down all their wires through this tree and none were left.

The first plea of the defendant was the general issue. The second, that the Mobile Light & Railroad Company was a joint tort-feasor with the defendant, and that plaintiff had entered into a settlement and composition with said railroad company, by which the plaintiff had made and executed a full release of any and all claims for damages.

The fourth plea set up this receipt in hæc verba, which appears to be in partial discharge of liability, which the plaintiff contends was a payment and discharge of defendant's liability pro tanto.

The only ruling upon the pleading was that sustaining the demurrer to the third plea, which set up an absolute bar to the plaintiff's entire action, the fact that she had executed the receipt which is set out in full in said plea.

The court accorded to the defendant, in mitigation of damages, and as a payment pro tanto in discharge of its liability, the amount named in said receipt as was set up in the defendant's fourth plea. The third plea set up said release as an absolute bar to the entire action.

The plaintiff admitted she had executed said release, which was in words and figures as follows:

"Received August 28, 1905, of the Mobile Light & Railroad Company one hundred dollars, in part payment of such amount as I, as the administratrix of the estate of Robert Isble, deceased, may be entitled to recover for or on account of his death, which I claim to have occurred on the 11th day of August, 1905, by reason of the joint negligence of the said Mobile Light & Railroad Company and of the Home Telephone Company.
"The Mobile Light & Railroad Company denies that it was guilty of any actionable negligence resulting in the death of the said Robert Isble, but makes said payment in full compromise and settlement of any claim that I, as such administratrix may have or claim to have against it on account of said death, and I, as such administratrix hereby release and discharge said company from all further claims on account of said death. It is however, expressly understood and agreed that this payment is made only on account of any sum that I may be entitled to recover for the death of said Robert Isble, and in consideration of my release of the said Mobile Light & Railroad Company from any liability for damages on account of said death, but it is not intended as a satisfaction of the entire amount that I may be entitled to for said death nor as a release of any claim that I may have against the Home Telephone Company, or
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