Lawson v. Mobile Elec. Co.

• Decision Date: 12 February 1920
• Docket Number: 1 Div. 120
• Citation: 85 So. 257,204 Ala. 318
• Parties: LAWSON v. MOBILE ELECTRIC CO.
• Court: Alabama Supreme Court

85 So. 257

204 Ala. 318

LAWSON v. MOBILE ELECTRIC CO.

1 Div. 120

Supreme Court of Alabama

February 12, 1920

On Rehearing, June 3, 1920

Appeal from Circuit Court, Mobile County; Claud A. Grayson, Judge.

Action by A.T. Lawson, as administrator of the estate of J.R Lawson, against the Mobile Electric Company for damages for the death of his intestate. Judgment for defendant, and plaintiff appeals. Affirmed.

Harry T. Smith & Caffey, of Mobile, for appellant.

Palmer Pillans and William Cowley, both of Mobile, for appellee.

SAYRE J.

Plaintiff's (appellant's) intestate and one Allio, a fellow servant were working for the Alabama Dry Dock & Shipbuilding Company in the hold of a steel vessel at 6 o'clock (normal time) in the afternoon of a day in August. Their business was to repair a broken rib in the vessel, a mine sweeper, which their employer was building for the government of the United States. There was water in the hold, and intestate stood upon a plank that had been placed for the purpose. The plank was wet. In response to a request from intestate, Allio handed to him an electric lamp, which, in order that it might be moved about as occasion required, was attached to a cord about 50 feet in length. At or near the point where the cord was attached to the socket of the lamp--an ordinary incandescent lamp--the wires constituting the cord were exposed; the insulating material having been worn away or otherwise destroyed. Allio took the light by the cord; intestate took hold at the bulb, or the basket protecting it. Intestate immediately received a shock, made an unsuccessful effort to disengage his hand from the lamp, and in a few moments died. It is not disputed that intestate died as the result of an electric shock received from the light, or rather the cord supplying it with current.

Plaintiff offered evidence tending to show that his intestate was up to the moment of his death a strong, healthy negro man, and an industrious worker, about 38 years of age, and never sick except with an occasional malarial chill; that the lighting current used at the shipbuilding company's plant was furnished by defendant, and is the same as that used for lighting in buildings in the city of Mobile; that the defendant furnishes a current of 2,300 volts, which passes through a transformer by which, when properly performing its function, it is stepped down to a current of 110 to 120 volts; that in the shipbuilding company's plant the three-wire system is used, each of the outside wires carrying 110 to 120 volts, the middle wire being neutral, carrying no current; that if you touch one of the outside wires of a three-wire system you get a current of 110 to 120 volts, but if you touch the two outside wires you get 220 to 240 volts that defendant furnished current to the shipbuilding company through a transformer fixed on a pole in the street to a meter at the point where the current passed into the shipbuilding company's plant; that the shipbuilding company distributed the current from the meter, and furnished all inside parts, equipment, and supplies, the cord with which plaintiff's intestate came in contact being a part of the apparatus furnished by the shipbuilding company for the use of its employés; that a current of 120 or 240 volts will not kill a man under ordinary conditions, but an expert witness, called by plaintiff, testified on cross-examination to his opinion that a current of 110 to 120 volts may prove fatal under favorable circumstances, meaning, of course, circumstances conducive to the full development of the current in the person affected thereby; that the physical condition of the man is to be considered; that the salt in perspiration and a wet plank under foot would help the passage through a man of the full current to which he is exposed, but that he could get no current in excess of that carried by the wire; that a current of 220 volts would burn out a lamp made to use 110 to 120 volts immediately. This witness further on cross-examination testified that the lamps in use at the shipbuilding plant were 110 to 120 volt lamps, and that on the vessel where intestate was working the three-wire system was not used, and that the particular wire from which intestate received his shock carried only 110 volts, but the witness commonly spoke of the voltage used in such lamps, the ordinary incandescent lamp, as 110 to 120.

Evidence for the defendant went to show that the current being generated at its power house and passing along its primary wire to the transformer at the shipbuilding plant at the moment of intestate's injury, and uniformly throughout the day, carried a voltage in the near neighborhood of 2,300, as shown by a mechanical device which operated constantly, uniformly, and accurately; that the transformer was constructed to step the current down to a voltage of one-twentieth of the high-tensions current on the primary line; that the transformer had not been inspected prior to intestate's injury, but that any defect therein necessarily persists until a remedy is applied, and that, without any change in conditions, the current from the transformer to the shipbuilding company's meter was measured within an hour after the accident and showed a voltage of 118; that the lights in the plant were burning at the time of the test; and that no high-tension wires were crossed on the wire supplying current to the plant. This evidence for the defendant was uncontradicted, save by the inference which the plaintiff would draw from the fact that his intestate died as the result of an electric shock produced by the current generated by defendant and distributed over its wires. One of the expert witnesses testified that negroes were commonly supposed to be more sensitive to electric shock than whites; that is, negroes are better conductors of electricity, and for that reason more subject to harm from a current of given voltage.

This statement of the evidence will suffice for the purposes of the appeal. The trial court, upon defendant's request in writing, charged the jury as follows:

"The court charges the jury that, if they believe all the evidence in this case, they ought to find a verdict for defendant"

--and that action of the court is assigned for error.

That count of the complaint which alone needs consideration at this time (count 1) alleged that plaintiff's intestate--

"was killed by reason of negligence on the part of the defendant [the Mobile Electric Company], or one of its servants or employés, in negligently charging, with a deadly current of electricity, a wire which was in such a position that the employés of the Alabama Dry Dock & Shipbuilding Company were liable to come in contract therewith."

While defendant was required to exercise a very high degree of care in and about the generation and distribution of its current, it is not claimed that it was an insurer; nor is the operation of the general rule of law, that the party who charges another with culpable negligence must prove it, denied in the premises. In its most general aspect the argument for a reversal proceeds upon the proposition that the fact that plaintiff's intestate was killed by an electric current furnished by defendant was of itself evidence that the current so furnished was excessive and dangerous to human life. But in no case can negligence be assumed from the mere fact of an injury; always the burden of proving the negligence alleged rests upon the plaintiff. However, the foregoing statement, undeniably true though it is, takes no account of the doctrine of res ipsa loquitur, and upon that doctrine, or the doctrine expressed by that maxim, appellant relies, contending that, in the presence of that doctrine the general charge with hypothesis was error.

Appellant lays much store by the opinion in Turner v. Southern Power Co., 154 N.C. 131, 69 S.E. 767, 32 L.R.A. (N.S.) 848, in which Shearman & Redfield on Negligence, § 59, is quoted as follows:

"In many cases the maxim 'res ipsa loquitur' applies--the affair speaks for itself. It is not that in any case negligence can be assumed from the mere fact of an accident and an injury, but in these cases the surrounding circumstances which are necessarily brought into view by showing how the accident occurred contain without further proof sufficient evidence of the defendant's duty and of his neglect to perform it. The fact of the casualty and the attendant circumstances may themselves furnish all the proof that the injured person is able to offer or that it is necessary to offer."

Upon this text, substantially, the cases upon which appellant relies are founded. We do not take issue with the quoted text; we observe only that, in view of modern texts and our own cases, some further statement as to the rationale of its doctrine is desirable, and that where, as here, evidence in denial of the negligence charged has been introduced, an additional element needs to be considered in determining the propriety of its application. In cases of this character we find frequent quotation of the following statement of the law from an English report, disclosing consideration of the additional element to which we have referred and a more adequate statement of the doctrine:

"Where the thing is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from want of care." Scott v. London Dock Co., 3 H. & C. 596, a case in which a passer-by was injured by the falling of goods from a crane.

Similar language was quoted by Stone, C.J., in Georgia Pacific Rwy. Co. v. Love, 91...