Murray v. Alabama Power Co.

• Decision Date: 30 April 1982
• Parties: Terri J. MURRAY, as Administratrix of the Estate of Daniel Curtis Murray, Deceased v. ALABAMA POWER COMPANY. 80-305.
• Court: Alabama Supreme Court

Page 1109

413 So.2d 1109

Terri J. MURRAY, as Administratrix of the Estate of Daniel Curtis Murray, Deceased v. ALABAMA POWER COMPANY.

80-305.

Supreme Court of Alabama.

April 30, 1982.

R. Timothy Morrison, of Emond & Vines, Birmingham, for appellant.

S. Allen Baker, Jr. and James A. Bradford of Balch, Bingham, Baker, Hawthorne, Williams & Ward, Birmingham, and Olin W. Zeanah of Zeanah, Donald & Hust, Tuscaloosa, for appellee.

TORBERT, Chief Justice.

This is a wrongful death action initiated by Terri J. Murray as administratrix of the estate of her husband, Daniel Curtis Murray. Plaintiff averred that the defendant, Alabama Power Company, negligently or wantonly failed to warn plaintiff's decedent of the imminent and inherent dangers associated with high power electrical transmission lines that ran adjacent to plaintiff's house and that this failure was the proximate cause of the death of plaintiff's husband. After a trial by jury, a verdict was returned in favor of the defendant. Plaintiff appeals this decision and we affirm.

On March 31, 1976, appellant's decedent, Daniel Curtis Murray, and two of his friends, James Porter and Roger May, were erecting a CB radio antenna at Murray's house in Tuscaloosa County. The antenna was approximately fifty-three feet in height. It is disputed as to whether the men had completed the erection of the antenna when it fell. Around 9:30 p. m., however, the antenna fell and came into contact with high power electrical transmission lines which were adjacent to Murray's property line. All three men were killed.

The transmission lines, owned and maintained by Alabama Power Company, were uninsulated and carried a current of 115,000 volts. The lines were located inside a 100 foot right of way, the view from the ground to the line was clear and unobstructed, and the lines were open and obvious. The antenna was burned where it contacted the lines, forty-three feet, four inches, from the base of the antenna. It is disputed as to whether Alabama Power Company had knowledge that area residents were erecting antennas adjacent to the transmission lines.

As stated above, at trial the jury returned a verdict in favor of Alabama Power Company. On appeal, the primary issue presented by the appellant is whether the trial court committed reversible error by allowing Alabama Power Company to introduce into evidence Tuscaloosa City Ordinance No. 1437 as evidence of contributory negligence. This ordinance provides in pertinent part:

"It shall be unlawful for any person to install, erect, or maintain, or for any person to permit to be installed, erected or maintained, on any property or premises under his charge or control, any radio or television antenna at any point unless the distance from the base of said antenna in a direct line to the nearest primary electrical distribution or transmission line or conductor carrying a potential of 600 volts or more of electricity is at least fifteen feet greater than the distance from the base of said antenna to the tip."

Tuscaloosa City Ordinance No. 1437.

At the conclusion of the trial, the trial judge instructed the jury that a violation of this ordinance was prima facie negligence. The pertinent portions of that charge are as follows:

"The duty of the plaintiff's intestate was to use ordinary care for his own safety, to do as a reasonable and prudent person would have done under the same or similar circumstances, or to refrain from doing what a reasonable and prudent person would have refrained from doing under the same or similar circumstances.

"Municipal ordinances extend to the police jurisdiction of a city. The police jurisdiction of the city is a three-mile extension of the corporate limits. The violation of certain state statutes or city ordinances is what is known as prima facie negligence. Prima facie negligence means that it is presumed to be negligence, but it is not under all circumstances, and it is a jury question whether such negligence--I am sorry, it is a jury question whether such a violation is negligence.

"Ordinance No. 1437 of the City of Tuscaloosa has been admitted into evidence. I am going to read you the pertinent parts of that ordinance. The fact that I read it to you is no indication that it has been violated or that any violation was the proximately contributing cause of any injury. You must determine whether or not such is negligence, whether or not such violation proximately contributed to the injury complained of, depending on what you find the facts to be.

"If you determine that the plaintiff's intestate violated this ordinance and that such violation was negligence and that such negligence proximately contributed to his death, then the plaintiff would not be entitled to recovery. The pertinent parts of that ordinance read as follows: 'It shall be unlawful for any person to install, erect or maintain or for any person to permit to be installed, erected or maintained on any property or premises under his charge or control, any radio or television antenna at any point unless the distance from the base of said antenna in a direct line to the nearest primary electrical distribution or transmission line or conductor carrying a potential of 600 volts or more electricity is at least fifteen feet greater than the distance from the base of said antenna to the tip thereof when fully extended.' "

On appeal, the appellant states that it is a general rule of law that a statute is applicable in the negligence context only where it is determined as a matter of law that the statute in question was enacted to protect the class of persons in which the party asserting the statute belongs from the risk of danger actually created by the violation. Appellant further contends that only where the statute was enacted for the benefit of the party seeking to assert its violation may that party assert that the violation constituted contributory negligence per se.

Appellant states that in this case, the instructions of the trial court, while referring to the violation of Ordinance 1437 as "prima facie negligence," coupled with the closing arguments of the defendant, were misleading and tended to indicate to the jury that a violation of the ordinance would be a complete defense for the defendant. These contentions, however, are without merit.

The trial court charged the jury that they were to make the determination of (1) whether the ordinance was violated, (2) whether that violation would constitute negligence, and (3) whether that negligence proximately caused the death of Daniel Murray. It is quite apparent that the trial court's charge did not invade the province of the jury.

The trial court stated that the violation of certain ordinances or statutes constituted prima facie negligence. Prima facie negligence is only evidence to support a jury finding that a party was guilty of negligence that was, in turn, the proximate cause of his injuries. A prima facie case of negligence must be submitted to the jury only as evidence of that negligence and it is not decided against the party as a matter of law. Here, had the charge been on negligence per se, the jury would have been instructed to determine whether, as a matter of fact, the ordinance had been violated and whether that violation was the proximate cause of the injury. As stated above, the ordinance was submitted only as prima facie evidence of negligence, not as negligence per se.

The appellant contends that the trial court's charge was misleading, yet it is the law in Alabama that an oral charge must be considered as a whole, and if the entire charge states the law correctly, then no reversible error has been committed even though when considered alone a single part of the charge might be considered erroneous. Salotti v. Seaboard Coast Line Railroad Co., 293 Ala. 1, 299 So.2d 695 (1974); Metzger Brothers, Inc. v. Friedman, 288 Ala. 386, 261 So.2d 398 (1971). As stated, the trial court specifically instructed the members of the jury that they were to determine (1) if the ordinance had been violated, (2) whether any violation would constitute negligence, and (3) whether that negligence would be the proximate cause of...