Littleton v. Alabama Power Co.

• Decision Date: 03 December 1942
• Docket Number: 5 Div. 369.
• Citation: 10 So.2d 757,243 Ala. 492
• Parties: LITTLETON v. ALABAMA POWER CO.
• Court: Alabama Supreme Court

10 So.2d 757

243 Ala. 492

LITTLETON v. ALABAMA POWER CO.

5 Div. 369.

Supreme Court of Alabama

December 3, 1942

Mullins & Deramus and Manuel Levine, all of Birmingham, for appellant.

Gerald & Gerald, of Clanton, and Martin, Turner & McWhorter, of Birmingham, for appellee.

FOSTER Justice.

The question here presented is the sufficiency of counts 1, A, B C and D, on the demurrer assigned.

Count 1 alleges that an uninsulated wire line on premises not belonging to defendant was "maintained by defendant in close proximity to where children of tender years frequented in large numbers, and in a thickly populated residential community, and in close proximity to a public playground for children," known to defendant, and that the injured child, seven years of age, was flying a kite by means of a string or otherwise, and that the string or kite came into contact with said uninsulated power line, proximately injuring her.

Count A has substantially the same allegations, except that the kite string was said to be wire or metal.

Counts B, C and D have substantially the same allegations as count A, except that the wire line was said to be to-wit twenty-five feet above the ground.

The sufficiency of those counts is to be tested for the purposes of this appeal by well settled principles which we will state. Where the act and the injury are not known by common experience to be naturally and reasonably in sequence and the injury does not in the ordinary course of events and under the circumstances follow from the act, they have been held not sufficiently connected to make the act the proximate cause. Louisville & Nashville R. Co. v. Maddox, 236 Ala 594, 183 So. 849, 118 A.L.R. 1318, (citing many earlier cases). Some other cases are Heffelfinger v. Lane, 239 Ala. 659, 196 So. 720; Dwight Mfg. Co. v. Word, 200 Ala. 221, 75 So. 979; Alabama Power Co. v Curry, 228 Ala. 444, 153 So. 634; Alabama Utilities Co. v. Champion, 230 Ala. 263, 160 So. 346.

An electric company has the duty to insulate its wires and to use reasonable care to keep them insulated whenever it may be reasonably anticipated that persons may come in contact with them, but it is not necessary to insulate wires so placed that no one could reasonably be expected to come in dangerous proximity to them. Alabama Power Co. v. Cooper, 229 Ala. 318, 156 So. 854; Sheffield Co. v. Morton, 161 Ala. 153, 49 So. 772; Golson v. W. F. Covington Mfg Co., 205 Ala. 226, 87 So. 439; McClusky v. Duncan, 216 Ala. 388, 113 So. 250.

The act of maintaining an uninsulated highly charged electric wire across a playground where children are known to be in the habit of playing, but out of their reach as they customarily play, with no dangerous enticement, is not a breach of duty owing to a child there playing who, contrary to custom, is flying a kite which causes a contact with the wire line, since under the circumstances the one so maintaining the wire line need not anticipate such an event as likely to occur. Watral's Adm'r v. Appalachian Power Co., 273 Ky. 25, 115 S.W.2d 372; Kedziora v. Washington Water Power Co., 193 Wash. 51, 74 P.2d 898; Dilley v. Iowa Public Service Co., 210 Iowa 1332, 227 N.W. 173; see, also, Kelley v. Texas Utilities Co., Tex. Civ.App., 115 S.W.2d 1233; Stark v. Muskegon Traction & Lighting Co., 141 Mich. 575, 104 N.W. 1100, 1 L.R.A.N.S. 822.

There is no occasion here to consider the attractive nuisance theory (15 Alabama Digest, Negligence, + 23(1), also Pocket Part) as where a post or a tree is enticing to a child to climb, and when so it is dangerous by reason of a defective or an uninsulated wire or other dangerous condition.

The question is not alone one of proximate causation, but also of whether there is a breach of duty to this injured child. There is not shown any breach of duty by merely charging that a wire line extended across a playground with a high voltage of electricity though the wires may be uninsulated, unless it is done under such stated circumstances as to be dangerous when the playground is used in such a way and manner as may be anticipated under those circumstances. And the complaint must aver facts which disclose that duty. Alabama Utilities Co. v. Champion, supra; Kilgore v. Birmingham Ry. Lt. & Power Co., 200 Ala. 238(3), 75 So. 996.

An allegation that the injury was the proximate consequence of certain alleged conditions is not sufficient if those conditions do not show a breach of duty to...