Postal Telegraph Cable Co. v. Jones

• Court: Supreme Court of Alabama
• Writing for the Court: McCLELLAN, C.J.
• Citation: 133 Ala. 217,32 So. 500
• Parties: POSTAL TEL. CABLE CO. v. JONES. [1]
• Decision Date: 09 April 1902

32 So. 500

133 Ala. 217

POSTAL TEL. CABLE CO.
v.
JONES. ^[1]

Supreme Court of Alabama

April 9, 1902

Appeal from circuit court, Jefferson county; A. A. Coleman, Judge.

Action by C. A. Jones against the Postal Telegraph Cable Company. From a judgment for plaintiff, defendant appeals. Affirmed.

This was an action brought by the appellee, C. A. Jones, against the Postal Telegraph Cable Company, to recover damages for personal injuries received by him while traveling along a public highway, by the side of which the defendant had its wires strung. The complaint, as amended, contained but one count. In this count the plaintiff alleged that on November 5, 1898, the defendant owned and operated a line of telegraph wire which was attached to poles along or near the public highway in Jefferson county; that said line of telegraph wire was heavily charged with electricity, "and it became and was the duty of defendant to use due care to have and keep said wire high up from the said road, yet, notwithstanding said duty, defendant negligently caused or allowed said wire to be or remain on or such a short distance above said public highway that the public traveling said highway were liable to be injured thereby." It was then averred that on the day above named the plaintiff was traveling along said highway in a wagon to which a team was attached, and that said team came in contact with the said wire, and, as a proximate consequence thereof, the team became unmanageable, plaintiff was thrown from the wagon, and came in contact with the wire, charged with electricity, and sustained the damages complained of. The plaintiff claimed $500 as damages. To this complaint the defendant demurred upon the following grounds: (1) It fails to aver any duty that the defendant owed to the plaintiff in the matter of the manner of maintaining its wires. (2) That the complaint fails to show that the defendant did not discharge its duty to the plaintiff. (3) The complaint fails to show with reasonable certainty in what the alleged negligence of the defendant consisted. (4) It fails to aver what, if any, negligence on the part of the defendant contributed proximately to plaintiff's alleged injuries. This demurrer was overruled. Thereupon the plaintiff filed the pleas of the general issue and the following special pleas: "(4) For further answer to the complaint, the defendant says and avers that the plaintiff ought not to have and recover any sum of this defendant in this cause, because, as it avers, neither the defendant, nor the employés of defendant whose duty it was to see that its wires at the point named in the complaint were properly attached to the poles, knew that said wires were detached from said poles in the manner stated in the complaint until after the alleged injury to plaintiff, when, as defendant avers, the defendant within a reasonable time thereafter caused said wires to be properly attached to said poles. (5) For answer to the complaint the defendant says and avers that the plaintiff ought not to have and recover any sum of this defendant in this cause, because, as it avers, neither the defendant, nor the employés of the defendant, whose duty it was to see that its wires at the point named in this complaint were properly attached to the poles, knew, or by the exercise of reasonable care would have known, that said wires were detached from said poles in the manner stated in the complaint until after the alleged injury to plaintiff, when, as defendant avers, the defendant within a reasonable time thereafter caused said wires to be properly attached to said poles. (6) For further plea in this behalf the defendant says and avers that plaintiff ought not to have and recover of this defendant any sum, because it says and avers that the plaintiff contributed to his own injury, in this: that, knowing the wire referred to in the complaint was alongside of the alleged road, he, without due care, drove or allowed to be driven the alleged team against said wire, thereby contributing to his alleged injuries. (7) For further answer to the complaint the defendant says and avers that the plaintiff ought not to have and recover any sum of this defendant in this cause, because, as it avers, that the defendant exercised reasonable care to prevent its said wires from becoming detached from its said poles, and that neither the defendant, nor the employés of the defendant whose duty it was to see that its wires at the point named in this complaint were properly attached to the poles, knew, or by the exercise of reasonable care would have known, that said wires were detached from said poles in the manner stated in the complaint until after the alleged injury to plaintiff, when, as defendant avers, the defendant within a reasonable time thereafter caused said wires to be properly attached to said poles." To pleas 4 and 5 the plaintiff demurred upon the following grounds: (1) Said pleas do not interpose any defense which could not be set up under the plea of the general issue, and the facts averred in said pleas can be given in evidence under the general issue. (2) Said pleas fail to negative the negligence of the defendant in allowing the wire to be along or near the public road. The demurrer to each of these pleas was sustained. The judgment entry recites that there was a motion made to strike the seventh plea from the file. The grounds of this motion are not shown. Said motion, however, was overruled.

On the trial of the cause upon issue joined upon the remaining pleas, it was shown that on the night of November 5, 1898, the plaintiff, in company with two other men, was riding along a public road in Jefferson county in a wagon drawn by a horse and a mule; that when they were about 13 miles from the city of Birmingham the team came in contact with a wire which was swinging about two feet from the ground in the middle of said road; that this wire was charged with electricity, and the shock therefrom caused the team to rear and charge; that the wagon was broken, the occupants thereof thrown out, and the plaintiff fell on the wire, and the...