Southern Bell Tel. & Tel. Co. v. McTyer

• Decision Date: 09 June 1903
• Citation: 34 So. 1020,137 Ala. 601
• Court: Alabama Supreme Court
• Parties: SOUTHERN BELL TELEPHONE & TELEGRAPH CO. v. MCTYER. [a1]

34 So. 1020

137 Ala. 601

SOUTHERN BELL TELEPHONE & TELEGRAPH CO. v. MCTYER. ^[a1]

Supreme Court of Alabama

June 9, 1903

Appeal from Circuit Court, Barbour County; A. A. Evans, Judge.

Action by Lizzie McTyer against the Southern Bell Telephone &amp Telegraph Company. From a judgment in favor of plaintiff defendant appeals. Affirmed.

The complaint contained five counts. Demurrers were sustained to the 1st, 2d, 3d, and 5th counts. The sixth count was in words and figures as follows: "(6) Plaintiff claims of defendant two thousand dollars for damages for that defendant is a corporation owning and operating a public telephone line and system in the city of Eufaula, Alabama, and vicinity, for many years past, and down to the present time, and it became and was the duty of defendant to manage, use, adjust, and place its wires and other appliances so as to minimize the danger therefrom to the public; that prior to June 30, 1900 defendant extended certain of its metallic wires into a certain storehouse building situated in the open country at the intersection of two much-traveled public highways leading to and from said city. Said building was on said date, and for a long time prior thereto, a public building, kept open to the public, and occupied by the proprietor for the sale of goods, wares, and merchandise to the public, into which the public were invited and many persons resorted, all of which the defendant well knew or might have known by use of ordinary diligence. That defendant ran its said wires a long distance overhead in air, attached to poles set in the ground about 30 feet high, in the manner of telegraph poles, into said building, and left said wires without any protective device at their ends; the ends of said wires having been left by defendant hanging from the inside of the wall of said building, at or near a much-frequented part of said building and reaching to within about five feet of the floor thereof. That said wires being among the best-known conductors of electricity in general use, and the said line of poles and wires being peculiarly and frequently subject to lightning strokes, the said wires run into said building as aforesaid formed an attractive pathway for the conduct of an electric current from the clouds or air into said building in force sufficient to injure or kill persons therein, especially during thunder or rain storms, which are of common occurrence in southeast Alabama during the summer months. And said defendant, with knowledge of the facts above stated, left said wires running into and suspended inside said building in manner and place aforesaid for a long time prior to and on June 30, 1900, and for a considerable time after said date, there being no use for said wires remaining inside said store, and defendant being under no obligation to keep them in said store for a long time prior to or on said date; and defendant could have taken said wires entirely away from said building, or have moved the ends to a point outside the building, and fastened said ends together around an insulator, thereby preventing said current from passing upon or into the said building, all of which defendant well knew. That on June 30, 1900, plaintiff, while in said building on business with the proprietor thereof, the same being then open to the public as aforesaid, was struck with great force and violence by a bolt of lightning which came over said wires from the outer air, and hurled against her person from, by, and through the said wires of defendant, and from the ends thereof suspended as aforesaid inside said building, whereby plaintiff was greatly injured in her eyes, back, limbs, and side, from which injuries she has suffered and still suffers much physical pain, and on account of which she has been put to great expense for medical attention and treatment, and suffered and still suffers much impairment, and been rendered and remains unfit to perform her household and other duties, to her damages as aforesaid; wherefore she brings suit."

The fourth count was substantially the same as the sixth count, except in said count it was averred that defendant maintained a wire in the store of said Thomas, and left said wire without any protective devise hanging inside of the wall of said building; with the further exception that it was averred in said fourth count that on June 30, 1900, when the plaintiff was struck by lightning, she went into the store of said Thomas by the permission of the proprietor, seeking refuge in said building from an approaching storm.

The defendant separately demurred to the fourth and sixth counts upon many grounds, which may be summarized as follows: (1) Because said count fails to allege that defendant unlawfully allowed its wires to remain exposed in the storehouse. (2) Said count alleges no facts showing that defendant owed a duty to plaintiff not to expose the ends of its wires in said store. (3) Because said count fails to allege that defendant was guilty of the breach of any duty towards the plaintiff in allowing the ends of its wires to remain exposed. (4) Said count fails to allege any facts showing wherein there was any negligence on the part of defendant in leaving the ends of its wires exposed. (5) Said count does not allege any facts showing that the alleged negligence of the defendant was the proximate cause of the plaintiff's injuries. (6) Said count fails to allege that there was any unlawful occupancy of said store by the defendant with its wires. (7) Said count fails to allege any fact showing that defendant was negligent in any manner which was the proximate cause of plaintiff's injuries. (8) Said count fails to allege any facts showing that defendant had no legal right to place and keep its wires in said storehouse. (9) Said count fails to allege any facts showing that defendant was negligent in the manner in which it placed or left its wires in said storehouse.

These several demurrers to the fourth and sixth counts were overruled, and thereupon the defendant pleaded the general issue and four special pleas. Plea numbered 3 was, however, subsequently withdrawn. The remaining special pleas were as follows:

"(2) The defendant, at the time of the alleged injury to plaintiff, had permission of E. M. Thomas, the owner of the building described in the complaint, to leave its wires disconnected from any telephone instrument in said building, and said wires were there by his consent and permission."

"(4) For further plea that at the time of the alleged injury to plaintiff there were two connected wires from its central office in Eufaula to the storehouse mentioned in the complaint, one of which was erected for the purpose of telephonic communication, and the other for the return of the current to the ground wire at or near its central office; that this system of grounding the current and wires is the best-known system, and acknowledged by experts to be the safest plan for the arrest and conducting thereof to the ground of electric currents on wires, and that when the telephone instrument was taken out of the said storehouse prior to the alleged injury the second wire, or what is usually called the return or ground wire, was also left in said building, and the same has remained in said building until after the alleged injury to plaintiff.

"(5) For further answer, that at the time of the alleged injury to plaintiff there were two connecting wires from its central office in Eufaula to the storehouse mentioned in the complaint, one of which is commonly known as a return or ground wire, and which were connected at or near said central office with the ground; that this system of grounding the current on wires is the only feasible and practical way of conducting a current to the ground, and is superior to any covering that may be placed on wires, or the ends thereof, in preventing the escape of the current otherwise than directly to the ground from the wires, and is such as has been adopted by a large majority of the best conducted and regulated electrical companies."

To the second plea the plaintiff demurred upon the grounds that the permission of E. M. Thomas, the proprietor of the store, had not justified the negligence of the defendant in leaving the wire in the building, as set forth in plaintiff's complaint.

To the fourth plea plaintiff demurred upon the following grounds "(1) Said plea fails to show that the alleged return or ground wire was in any manner connected with the wire from which the current is alleged to have been conducted to plaintiff's person. (2) Said plea fails to show that said ground wire was attached to or connected with the wire...