McKay v. Southern Bell Telephone & Telegraph Co.

Decision Date08 April 1896
PartiesMCKAY ET. AL. v. SOUTHERN BELL TELEPHONE & TELEGRAPH CO. ET AL.
CourtAlabama Supreme Court

Appeal from circuit court, Mobile county; John R. Tyson, Judge.

This action was brought by the appellants, McKay & Roche, against the appellees, the Southern Bell Telephone & Telegraph Company and the Mobile Street-Railroad Company, to recover damages for the alleged negligent killing and injury of two horses, the property of the plaintiffs. Judgment for defendants. Plaintiffs appeal. Reversed.

The complaint contained three counts. The demurrers interposed to each of the counts of the complaint were overruled. The pleas of the Southern Bell Telephone & Telegraph Company are sufficiently stated in the opinion. The Mobile Street Railroad pleaded (1) the general issue, to each of the counts, and the following special pleas: "(2) As a plea pleaded separately to each count of said complaint, said defendant says that, at the time of the matters and things complained of, it had lawful authority to construct and operate an electric railroad over the street where the accident occurred, and, as such, to use and erect trolley wires for the propulsion of its cars, and, for the same purpose, to cause said trolley wire to be heavily charged with electricity. And this defendant avers that its trolley wire along the street where the accident occurred was erected and maintained in a manner authorized by its charter, and by the ordinance of the city of Mobile granting it a franchise over said street for said purpose; and that an overhead wire maintained and operated by a separate and distinct corporation, with which this defendant had no connection, and without fault on the part of this defendant, did break and fall across this defendant's trolley wire, and thereby became charged with electricity, and came in contact with plaintiffs' horses, and caused the injury complained of. And this defendant further avers that it did nothing to cause said wire to so break and come in contact with its said trolley wire, nor was it guilty of any negligence that caused, or tended to cause, the breaking of said overhead wire, or its coming in contact with plaintiffs' horses. (3) For a further plea in this behalf, pleaded separately to each count of the complaint, this defendant says that it erected and maintained its trolley wire along the street where the accident complained of occurred, in the manner in which it was authorized to erect and maintain the same, and in the manner in which other trolley wires are erected and maintained by many prudently and well-managed electric railway companies conducting the same character of business which this defendant was conducting, over and along the streets of other cities; and that, other than the erection maintenance, and conduct of its said electric railway in the manner aforesaid, it did nothing that proximately contributed to the injuries complained of." To these pleas the plaintiffs demurred, which demurrers were overruled. The plaintiffs filed replications to the pleas of each of the defendants, and duly excepted to the court's sustaining the separate demurrers of each of the defendants interposed to the several replications.

On the trial of the cause, as is shown by the bill of exceptions the evidence tended to show that the injury complained of occurred at the corner of Government and Lawrence streets that Government street runs east and west, and Lawrence street runs north and south, across Government street, and that both said streets are public highways in the city of Mobile; that the defendant the Southern Bell Telephone &amp Telegraph Company had a telephone wire stretched along Lawrence street, and across Government street, diagonally from the northwest corner to the southeast corner of said streets; that said telephone wire was stretched across Government street, and over and above the trolley wire of the defendant the Mobile Street-Railroad Company; that said telephone wire and said trolley wires had been put up before August 9, 1893; that said. Mobile Street-Railroad Company had double tracks on Government street, and a trolley wire over each track; that the cars of said railroad company were propelled by electricity, and said trolley wires were heavily charged with electricity, for the purpose of supplying the cars with motive power; that said cars, in going west, ran on one of the tracks, and, coming east, ran on the other; that said telephone wire was attached to a pole on the northwest corner of Government and Lawrence streets, and on another pole on the east side of Lawrence street, about 60 or 70 feet south of Government street; that on the evening of the 17th of January, 1894, said telephone wire, which was held with a small wire to an insulator attached to a pole on the east side of Lawrence street, south of Government street, had broken loose from its fastening, and fallen across, and was lying upon, one of said trolley wires, and extended down in a kind of a droop or slant from the trolley wire to the ground and reached the ground about where Lawrence street entered into Government street, on the south, at which place there was a bridge over the gutter, and about 60 or 70 feet of said telephone wire were lying on the ground along Lawrence street, from where it entered into Government street, and from that point it ran up on an incline or kind of droop to the trolley wire, and was about the height of a horse's breast over the driveway on the south side of Government street, and became heavily charged with electricity, which it received by its contact with said trolley wire,-sufficiently charged with electricity to kill a horse; that about dusk on the evening of said 17th of January, 1894, and while said telephone wire was down, and charged with electricity, as above stated, appellant's servant was in charge of, and driving westwardly, along the south side of Government street, a pair of fine horses of appellants, drawing a phaeton, also their property, in which phaeton there were, at the time, two ladies and said driver; that, when appellants' servant, with said team, had gotten to within a block of the intersection of Government and Lawrence streets, he saw a horse that was drawing a buggy, and driven by a white gentleman, fall on the bridge, at the entrance of Lawrence street into Government street; that said horse and buggy were coming up Lawrence street from the south; that appellants' servant did not know what caused that horse to fall on said bridge, whether it was from a hole in the bridge or what; that appellants' servant did not see the telephone wire that was down, and lying on and across the trolley wire, nor did he know that said telephone wire was down on the trolley wire, nor did any one call to him, or give him any notice or warning that there was a wire down on the ground charged with electricity; that appellants' servant was driving at a pretty pert trot, and, when the horses got opposite to where Lawrence street entered into Government street, the right-hand horse came in contact with the wire, it striking him under the breast, and he fell, and was almost instantly killed, and the other horse was pulled down, or stepped on the wire, and fell, and was badly burned, rendering him valueless; that the damage thus sustained by appellants was between $500 and $600; that the damage was done by the electricity with which said telephone wire was charged, from its contact with said trolley wire. The plaintiffs, after proving its existence, offered to read in evidence section 494 of the ordinance of the city of Mobile, which provided for a method of erecting electric light, motor, or power conductors when they approached or crossed the line of any fire alarm or police telegraph, telephone, or telegraph line in the city of Mobile. The Mobile Street-Railroad Company objected to the introduction of said ordinance in evidence, on the ground that the same was immaterial, irrelevant, and incompetent. The court sustained this objection, and the plaintiffs duly excepted. The defendant offered no evidence. Upon the introduction of all the evidence of the plaintiffs, each of the defendants separately requested the court to give the general charge in its behalf. The court gave each of these charges, and to the giving of each of them the plaintiffs separately excepted. There were verdict and judgment for the defendants. The plaintiffs appeal, and assign as error the several rulings of the trial court to which exceptions...

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