Simpson v. City of Montgomery

• Citation: 211 So.2d 498,282 Ala. 368
• Decision Date: 30 May 1968
• Docket Number: 3 Div. 344,3 Div. 345
• Parties: Robert Tennent SIMPSON, as Executor of the Estate of Sally Sewell Simpson, Deceased v. CITY OF MONTGOMERY and Alabama Power Company. Robert Tennent SIMPSON v. CITY OF MONTGOMERY and Alabama Power Company. ,
• Court: Supreme Court of Alabama

Page 498

211 So.2d 498

282 Ala. 368

Robert Tennent SIMPSON, as Executor of the Estate of Sally Sewell Simpson, Deceased v. CITY OF MONTGOMERY and Alabama Power Company.

Robert Tennent SIMPSON v. CITY OF MONTGOMERY and Alabama Power Company.

3 Div. 344, 3 Div. 345.

Supreme Court of Alabama.

May 30, 1968.

Rehearing Denied June 24, 1968.

Hill, Hill, Whiting & Harris, Montgomery, for appellants.

Walter J. Knabe and Parker & Hoffman, Montgomery, for City of montgomery.

Steiner, Crum & Baker and Martin, Balch, Bingham, Hawthorne & Williams, Montgomery, for Alabama Power Company.

HARE, Special Justice.

In Ex parte Simpson--Ex parte Alabama Power Co., 280 Ala. 586, 196 So.2d 702, this case was before us on a petition for mandamus to the trial judge with reference to whether various interrogatories should or should not be answered. That opinion explains the circumstances under which the members of this Special Court are sitting instead of the regular members of the Court. For the same reasons, we are called upon to hear and determine this appeal from the final judgment of non-suit.

The complaint charges the City of Montgomery and the Alabama Power Company with combined and concurrent negligence in maintaining the power pole alleged to be the proximate cause of the fatal accident made the basis of one case and the bodily injuries made the basis of the other case. The trial court sustained demurrer to the complaint and the plaintiff suffered a non-suit and appealed. The cases are submitted on a motion to dismiss the appeal and on the merits.

The first point for our consideration is the appellees' motion to dismiss the appeal which essentially is founded on the fact that after sustaining the demurrer to the complaint, the trial judge added a notation that the plaintiff had permission to file an amendment eliminating the case for concurrent negligence against the Alabama Power Company and thereby leaving one defendant, the City, in the case. We overrule the motion to dismiss the appeal. A plaintiff is entitled to his remedy by non-suit and appeal if the adverse ruling of the court makes it necessary to preserve the integrity of his case. That requirement is not met so long as there remains a single Count of the complaint upon which the plaintiff can proceed, but the requirement is met where one defendant is eliminated, and a single Defendant remains in the case, in a complaint charging concurrent negligence of both defendants. This is the holding of McGough v. Wilson, 273 Ala. 179, 137 So.2d 43, interpreting the non-suit statute. Title 7, § 819, of the Code.

The decision on the merits presents a much more difficult question. The plaintiff commendably included in his complaint a statement of the physical facts specifically describing the location of the pole, stating that: 'his (plaintiff) automobile collided with an unlighted utility pole situated on the median separating East bound and West bound lanes for vehicular travel on said Highland Avenue, which said pole was located approximately 2 feet 7 inches from the East curb line of a four inch high granite curb of said median and approximately 4 feet 3 inches from the North curb line of said four inch high granite curb of said median and approximately 19 feet from the South curb line of said four inch high granite curb of said median, said pole being approximately 29 feet 11 inches from the North curb of Highland Avenue and approximately 44 feet 5 inches from the South curb of said Highland Avenue, and thereby and as the proximate result and consequence thereof plaintiff' suffered the loss and damage claimed.

Thus, plaintiff elected to plead the quo modo of negligence alleged, which must prevail over the conclusion that defendants 'negligently maintained said pole in dangerous proximity to the street'--if, as a matter of law, there is no liability for maintaining a pole so located within the median and outside of the traveled portion of the street. That is the legal question presented by this appeal.

The question is not answered for the defendant Alabama Power Company by the fact that the City of Montgomery authorized it to place the pole in this location. Although a pole located as authorized by law cannot be a nuisance, City of Prichard v. Ala. Power Co., 234 Ala. 339, 175 So. 294, a municipal corporation could not license a public utility to violate a common law duty of due care owed to the public. Blashfield Automobile Law, 3rd Edition, Vol. 4, § 163.9 on p. 295. The Court held in the case of Cullman-Jefferson Counties Gas District v. Reeves, Ala., 199 So.2d 78 (1967):

'We have long been committed to the proposition that one using a public way for its own purposes, Even with permission, must use due care to avoid injury to the traveling public. 25 Am.Jur., Highways.' (Emphasis supplied.)

We must face the real legal issue: Does liability arise from the maintenance of a power pole in the location described in the complaint?

In our judgment it does not.

Both sides rely upon Birmingham Electric Co. v. Lawson, 239 Ala. 236, 194 So. 659. In that case a count was held good against demurrer which averred that the defendant maintained a pole--

'which said pole was located in close and dangerous proximity to the travelled portion of said public highway, and was within the right of way of said highway and * * * rendered the said highway dangerous for use by the plaintiff and by the public.'

Had plaintiff in the present case chosen to limit his count to a similar statement, under the Lawson case, the demurrer must have been overruled. Since, however, this complaint pleads the facts relied upon, it is necessary to compare the location of the pole in the Lawson case, as stated in the evidence with the location of the pole in this case, as stated in the complaint. The evidence in the Lawson case was held sufficient to sustain a verdict for the plaintiff.

We cannot escape the issue by reason of the fact that here we have pleading construed more strictly against the pleader and there we had evidence judged by the scintilla rule favorably to the plaintiff. Whether the location of the pole in this case is construed favorably or strictly, the location is plain and certain and the appeal presents the issue of law plainly.

Appellant urges that in the Lawson case the distance the pole was located from the edge of the paved portion of the highway where the accident occurred ranged from 18 inches to 3 or 4 feet and that it was therefore as far distant from the paved portion of the highway as is the pole in the case before us. But in the Lawson case the pole was located on the shoulder of the road and on a curve whereas the pole in this case is located within a parkway or median separated from the traveled portion of the road by a high curb.

We find no Alabama case involving a pole within the median, but the weight of authority elsewhere finds the difference critical. The reason for the distinction is that it is foreseeable and proper for an automobile to travel upon the shoulder of a road. It is sometimes required to do so. ¹ But it is not reasonably foreseeable or ordinarily necessary for an automobile to be driven across the curb and upon the median. The size of the median, which by definition is located between two or more lanes of traffic, itself limits the maximum lateral distance which the pole may be located from the street.

Otherwise stated, the location of the pole in the Lawson case on the shoulder would not contradict the averment of negligence by way of conclusion that the defendant maintained it in such close proximity to the portion of the highway set apart and devoted to public use as to be dangerous to members of the public in the legitimate use of the highway. To the contrary, we hold that the averment in this case that the pole was located behind a granite curb and well within the median contradicts and must prevail over the averment by way of conclusion in the count that it was located so as to endanger West bound traffic in the lawful use of the highway.

In City of Birmingham v. Cox, 230 Ala. 99, 159 So. 818, the Court said:

'Negligence may be averred in a complaint in general terms, and when the allegation is of the acts constituting negligence relied upon, the pleading is demurrable, unless such acts, so averred, in themselves constitute actionable negligence as a matter of law.'

When facts are set up in the complaint as constituting the quo modo of negligence they may either (a) show negligence as a matter of law, or (b) show that as a matter of law there was no negligence, or (c) they may 'in themselves show or suggest negligence'--Birmingham Ry. Light & Power Co. v. Barrett, 179 Ala. 274, 60 So. 262. Where, as here, the facts as a matter of law show no duty or breach thereof, the count is demurrable notwithstanding an averment of negligence by way of conclusion.

The Lawson case cites the case of Gilbert v. Southern Bell, 200 Ala. 3, 75 So. 315. The pole was located 'between the outside edge of the road and on the west side of the center of said road at a point about 4 feet from the outside edge of said road.' There a verdict for the defendant was affirmed and the plaintiff complained of the giving at the request of the defendant of charge 9 as follows:

'The defendant had a right to maintain its pole at a point along the margin of the road, provided that said pole was not at a place where it interfered with the usual customary use of the road by the public.'

The Court did state:

'We prefer not to accept the proposition of charge 9 as universally true.'

The opinion then explained its view further, stating that such utilities could not--

'take advantage of the convenient windings of travel due to difficulties in the road, to intrude their poles into that part of a highway set apart and devoted to the use of the public traveling on foot and in vehicles. * * * This means necessarily that their poles may be planted within the borders of...