Lawson v. General Tel. Co. of Ala.

• Decision Date: 07 September 1972
• Docket Number: 4 Div. 434
• Citation: 267 So.2d 132,289 Ala. 283
• Parties: Glenda LAWSON v. GENERAL TELEPHONE COMPANY OF ALABAMA, a corporation.
• Court: Alabama Supreme Court

Page 132

267 So.2d 132

289 Ala. 283

Glenda LAWSON v. GENERAL TELEPHONE COMPANY OF ALABAMA, a corporation.

4 Div. 434.

Supreme Court of Alabama.

Sept. 7, 1972.

Rehearing Denied Oct. 19, 1972.

Tipler, Fuller & Barnes, Andalusia, for appellant.

Albrittons & Rankin, Andalusia, for appellee.

BLOODWORTH, Justice.

Plaintiff appeals from a judgment of the trial court granting the defendant a new trial after a jury verdict and judgment for plaintiff for $15,000. The sole question presented on this appeal is whether the trial court's action constituted error. We answer this question in the affirmative and reverse and remand the cause.

This case arose out of the following factual context.

On Sunday evening, September 29, 1968, after dark, Waco Taylor was seated in his den at his home located on the west side of Stanley Street in Andalusia, Covington County, Alabama. He heard a loud 'crack' and ran outside. He found a Mr. Griffith, a neighbor, looking at the telephone service lines leading from the east side of Stanley Street across the street to Griffith's home. The pole was broke and the lines sagged across the street. The lines were about 6 feet above the center of the north bound lane. Mr. Griffith testified he was in his house when he had heard the noise. He said it was like a banjo strumming, and like somebody hit something. He ran outside. Both men testified the pole was broken off at or near the ground with the wires still holding it partially up. (The lines were located about the middle of the block.)

Just then an automobile, being operated by Ted Grimes in a northerly direction on Stanley Street, came upon the scene. It was stopped by Waco Taylor, who waved down Grimes, warning him the lines were down and that he should not attempt to drive under them in that lane. There was testimony that Grimes' radio aerial would not clear the wires if he had driven under them. Taylor told Grimes to back up. Grimes backed up about ten feet and stopped just as the Lawson car approached from his rear on Stanley Street. Plaintiff was a passenger in this car which was being operated by her husband. Taylor attempted to flag down the Lawson car but did not succeed. The Lawson car struck the Grimes car in the rear. The Grimes car traveled approximately 60 feet after the impact. As a result of this collision, Mrs. Lawson was severely and permanently injured. She suffered facial and head injuries and had to undergo extensive plastic surgery. She remains permanently scarred. There was some testimony to indicate Lawson applied his brakes before the collision.

According to defendant's plant supervisor, the pole in question was installed in 1943, and whether new or used, he could not say. He admitted that there was no periodic inspection made of poles. Though, when an employee climbed a pole he knocked on it with his pliers to see if it was safe to climb. There was testimony that before the accident the service wires had been strung from 16 feet 2 inches to 17 feet 9 inches above the center of the lanes of the street. Evidence was offered that the National Electrical Safety Code, prepared by the National Bureau of Standards, requires a minimum basic clearance of 18 feet for communication wire. Defendant's supervisor testified he was unfamiliar with this standard. Further, there was evidence the pole in question was old, hard and brittle, with little resiliency. The National Electrical Safety Code specifies that such poles shall be periodically inspected and maintained in a safe condition.

Plaintiff's expert witness Payne testified that, in his opinion, the pole broke as the result of a jerk at the top of the pole when a vehicle of considerable height, such as a log truck, passed under the wires producing a sudden jerk, which combined with the condition of the brittle pole, snapped the pole. He testified it would snap easily.

Defendant offered evidence suggesting that a vehicle must have hit the pole causing it to break. However, Officer Thornton, who arrived within three or four minutes after the wreck, testified he found no debris to indicate the involvement of any third vehicle with the pole. Other witnesses testified to the same effect. Defendant also offered testimony to the effect that plaintiff's husband was intoxicated, and that plaintiff's injuries were the proximate result of his negligence. Defendant offered testimony that the steel wires (composing these lines) would break before the pole broke. Plaintiff offered its expert Payne who testified: that the maximum load at top of the pole (when it was new) was 151 pounds of pull; that the pole was, at the time, being subjected to 90 pounds of pull '* * * darn near loaded to the breaking point * * *; that a tug of pressure at top of the pole, rather than an impact at the bottom would more easily break the pole.'

There was street lights at the intersections of Watson Street and Lindsey Bridge Road with Stanley Street, but none at the point where the pole was located. The condition of light was in dispute. The nearest light appears to have been at least 150 feet away. There was a dispute as to whether the pole was broken in one or two places. Defendant's supervisor testified he had not determined what caused the pole to break. There was testimony from several of defendant's expert witnesses to the effect that the pole was 'sound,' though they admitted it was 'brittle' at the bottom.

Plaintiff's amended complaint was couched in two counts.

Count One-B alleged the defendant negligently erected its pole and wires across Stanley Street at an unsafe height above the public street at a point where traffic was wont to pass and as a proximate result of said negligence the defendant's pole was broken and its wires were caused to drop or sag across the public street in such a position as to block traffic, and that Ted Grimes was obliged to stop his car at or near the wires, and the automobile in which plaintiff was riding as a passenger was caused to collide with the Grimes vehicle resulting in plaintiff's injuries.

Count One-C charged defendant with negligently maintaining its pole in negligently failing to properly and adequately inspect it and as a result the pole became old, deteriorated and unsafe for the use put to it by defendant, and broke, and the wires were caused to sag across the public street in such a position as to block traffic and Ted Grimes was obliged to stop his vehicle at the wires, causing the automobile in which plaintiff was riding as a passenger to collide with Grimes vehicle, resulting in plaintiff's injuries.

The pertinent portions of the trial court's judgment granting defendant a new trial are, viz:

'* * * The Court is of the opinion that the Defendant was entitled to the general affirmative charge with hypothesis because, in the opinion of the Court there was an intervening efficient cause which proximately caused the Plaintiff's injury without regard as to whether or not the Defendant negligently maintained it's (sic) telephone lines and that the Plaintiff was not entitled to have the case submitted to the jury for a verdict.

'It is the opinion of the Court that the Court erred in refusing the general affirmative charge with hypothesis and that a new trial should be granted based upon the Defendant's ground of the Motion No. 10.'

Ground 10 of defendant's motion for new trial is as follows:

'10. The Court erred in refusing the following charge requested in writing by the Defendant:

'DEFENDANT'S CHARGE NO. 2

"The Court charges the jury, that if you believe the evidence in this case, you cannot find for the plaintiff."

Was the trial court correct in concluding that the defendant was entitled to a new trial because the court erred in not giving the general affirmative charge for defendant? We think not.

In civil cases, in this state, it is axiomatic that,

'* * * (T)he question must go to the jury if the evidence or the reasonable inferences therefrom furnish a mere gleam, glimmer, spark, the least bit, the smallest trace, a scintilla, in support of the theory of the complaint.--Lankford v. Mong, 283 Ala. 24, 214 So.2d 301, and cases cited * * *. * * *' Union Central Life Insurance Company v. Scott, 286 Ala. 10, 13, 236 So.2d 328, 332 (1970).

'Generally speaking, proximate cause is a jury question. McCaleb v. Reed, 225 Ala. 564, 144 So. 28; Allman v. Beam, 272 Ala. 110, 130 So.2d 194; and it is only when the facts are such that reasonable men must draw the same conclusion that the question of proximate cause is one of law for the courts. * * *' Giles v. Gardner, 287 Ala. 166, 169, 249 So.2d 824, 826 (1971).

Much of the evidence was in conflict and disputed. However, we are of the opinion that, taking the evidence most favorable to the plaintiff, and those reasonable inferences flowing therefrom, it was sufficient to take this case to the jury under the scintilla rule on the questions of initial negligence and proximate cause. In our view, defendant was not entitled to the general affirmative charge as to either aspect of the case. Particularly, we are not persuaded that reasonable men must draw the same conclusion from the facts on the issue of proximate cause in this case. It was thus for the jury.

Defendant cites two cases which it contends are decisive on the issue of proximate cause in this case. These cases are: Morgan v. City of Tuscaloosa, 268 Ala. 493, 108 So.2d 342 (1959); and Rhodes v. Strickland, 284 Ala. 621, 227 So.2d 392 (1969).

In Morgan, there was a suit for damages against the City of Tuscaloosa for the death of an infant as a result of being struck by a party's automobile, when that party ran his automobile into water backed up on a city street allegedly due to a negligently maintained drain, and water splashed upon his windshield, blinding him and causing him to lose control and strike the infant pedestrian. This court affirmed the trial court's judgment sustaining a demurrer to the complaint. The conclusion of this...