Montgomery Light & Water Power Co. v. Thombs
Decision Date | 30 June 1920 |
Docket Number | 3 Div. 429 |
Citation | 204 Ala. 678,87 So. 205 |
Court | Alabama Supreme Court |
Parties | MONTGOMERY LIGHT & WATER POWER CO. v. THOMBS. |
Rehearing Denied Nov. 6, 1920
Addenda Nov. 15, 1920
Appeal from Circuit Court, Montgomery County; W.L. Martin, Judge.
Action by Jessie Boggs Thombs, as administrator, against the Montgomery Light & Water Power Company for damages for the death of her intestate. Judgment for the plaintiff, and defendant appeals. Affirmed on condition that plaintiff enter a remittitur reducing the judgment from $25,000 to $15,000.
If necessary to obviate and remove a dangerous condition, an electric power company has the right and duty to move the wire of an electric light company which was apt to come in contact with the power wire, so that a charge requested by the power company that plaintiff should have sued the light company was properly refused as an invasion of the province of the jury.
The second count of the complaint, to which demurrers were interposed and overruled, is in the following words:
The demurrers take the following points: (8) No facts are alleged in said count to show that the plaintiff's intestate's injuries were the proximate result of any breach of duty or negligence on the part of the defendant; (14) the allegation that the defendant negligently permitted one of its wires to come in contact with the Light & Traction Company's wires, etc., is merely the conclusion of the pleader, as no facts are alleged in support thereof; and (15) no facts are alleged in said count to show that this defendant was under any duty not to permit its said wire or wires to come in contact with the traction company's wires, or the wires that lead into plaintiff's intestate's home.
Count 1 is as follows:
The following are the charges given at the instance of the defendant:
The court gave charge 4 for the defendant as follows:
"If after a full and fair consideration of all the evidence in this case any individual juror is not reasonably satisfied that the plaintiff ought to recover, you cannot return a verdict for the plaintiff"
--and made the following explanation:
Assignment of error 3 is that the court erred in overruling appellant's objection to appellee's question to the witness O'Toole as follows:
"About a year before that time did they have any trouble out there on that corner?"
Assignment 4 is that the court erred in overruling appellant's motion to exclude the answer to the question.
The following charges were refused to the defendant: (1) The general affirmative charge; (2) affirmative charge as to first count; (3) affirmative charge as to second count. The following charges were refused to the defendant:
In his opening argument Mr. Seibels said:
"The people of Montgomery have been clamoring for a long time to have all these wires put under ground, and the...
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