Southern Bell Telephone & Telegraph Co. v. Miller

• Decision Date: 07 November 1914
• Docket Number: 734
• Citation: 68 So. 184,192 Ala. 346
• Court: Alabama Supreme Court
• Parties: SOUTHERN BELL TELEPHONE & TELEGRAPH CO. v. MILLER.

68 So. 184

192 Ala. 346

SOUTHERN BELL TELEPHONE & TELEGRAPH CO. v. MILLER.

No. 734

Supreme Court of Alabama

November 7, 1914

On Rehearing, February 11, 1915

Appeal from Circuit Court, Jefferson County; E.C. Crowe, Judge.

Action by J.W. Miller against the Southern Bell Telephone &amp Telegraph Company and others for damages for being struck by a pole falling. Judgment for plaintiff, and defendant named appeals. Reversed and remanded.

The original suit was against the Southern Bell, the People's Home Telephone Company, and the Birmingham Railway, Light &amp Power Company. The Birmingham Railway, Light & Power Company was stricken on motion of plaintiff, and judgment was had against the Southern Bell Company. The original complaint declared upon simple negligence. The second count was based upon the willful, wanton, or intentional conduct of the servants or agents of defendant while acting within the line and scope of their employment, in that they wantonly willfully, or intentionally caused said pole to fall upon plaintiff with the knowledge that plaintiff would probably be injured thereby, and with reckless disregard of the consequences.

The evidence of J.L. Powell, referred to in the opinion, is as follows:

A lineman climbing the pole can tell from the way the pole acts whether it is rotten, sometimes. If it is as rotten as that (referring to part of the pole that fell that had been produced in court) looks to be, he would be apt to know it was in that condition by climbing the pole. Coker, a lineman had been in our employ I suppose about eight or six years. He was a good lineman. So far as I know, he performed his duty faithfully.

Stokely, Scrivner & Dominick, of Birmingham, for appellant.

W.A. Denson, of Birmingham, and N.D. Denson, of Opelika, for appellee.

ANDERSON C.J.

Under the repeated decisions of this court, wanton negligence is not established by proof of a mere breach of duty, but the proof must show knowledge on the part of the defendant, or its servants, of the existence of conditions which would make it, or them, conscious that injury would likely or probably result as the proximate result of said breach of duty. In other words, there must be a knowledge or consciousness of the existence of conditions which would likely or probably result in injury, as distinguished from a mere negligent failure to discover said dangerous condition. In the case at bar, there was ample evidence from which the jury could infer negligence on the part of this defendant's servants for a failure to inspect and discover the rotten or defective condition of the pole which fell upon and injured this plaintiff, but there was no proof that any of the servants of the defendant knew of the defective or rotten condition of the pole prior to the injury. It is true that there was proof that two of the defendant's linemen climbed the pole in question a couple of times shortly prior to the injury, but there was no proof that they inspected the said pole or ascertained the defective condition of same. It is also most probable that an inspection of said pole would have led to a discovery of the defect, and, had the proof shown that an inspection was made, the jury could have well inferred a knowledge of the defect and a consciousness of the existence of danger and of the fact that a failure to replace the pole by a sound one would likely or probably result in injury to some one. There was, however, no proof that the linemen inspected the pole, and the only theory upon which the plaintiff must rely to charge a knowledge of the defect is to presume that said linemen, or one...