Sullivan v. Alabama Power Co.

Decision Date24 November 1944
Docket Number6 Div. 244.
Citation20 So.2d 224,246 Ala. 262
PartiesSULLIVAN v. ALABAMA POWER CO.
CourtAlabama Supreme Court

Rehearing Denied Jan. 11, 1945.

Harsh & Here, of Birmingham, for appellant.

Ross Ross & Ross, of Bessemer, and Martin, Turner &amp McWhorter, of Birmingham, for appellee.

Counts 1 and 2 of the complaint are as follows:

'Count one. The plaintiff claims of the defendant Sixty Thousand Dollars as damages for that heretofore, to-wit: on October 27, 1940, the defendant corporation was engaged in the business of transmitting and maintaining over certain wires a current of electricity at a high and dangerous voltage, to-wit: a voltage of 6900 volts over or along a line, to-wit: a bare and uninsulated copper wire, which was suspended from poles in the air over and above a portion of the property and home of the plaintiff's intestate known as, to-wit: Lot 5 in Block 1, Greenwood Homesteads, In Jefferson County, Alabama, and plaintiff avers that on said occasion her intestate, the said John Emmett Sullivan, while standing on his own premises where he had a right to be, was electrocuted by a current of electricity from said wire being so injured by the shock of electricity so transmitted over said wire that as a proximate consequence thereof he died.

'And plaintiff avers that on said occasion the defendant negligently caused or negligently allowed said dangerous high voltage wire to be or remain in a condition in dangerous proximity to the surface of the land which plaintiff's intestate occupied as his home, and as a proximate consequence of said negligence of defendant, plaintiff's intestate was, as aforesaid, so injured that he died.

'Count Two. Plaintiff claims of defendant Sixty Thousand Dollars as damages for the heretofore on, to-wit: October 27, 1940, the plaintiff's intestate John Emmett Sullivan was in lawful possession of certain premises as his home, said premises being described as Lot 5 in Block 1, Greenwood Homesteads in Jefferson County, Alabama. And plaintiff avers that on said occasion the defendant was in charge or control of a certain uninsulated high tension wire, carrying a dangerous and deadly voltage, to-wit: 6900 volts of electricity, and that said wire was suspended from poles in the air over the area of the plaintiff's said intestate's premises.

'And plaintiff avers that on said occasion while her intestate, the said John Emmett Sullivan, was standing on his own property, a part of said premises, where he had a right to be, a current of electricity was discharged or came from said wire in contact with the plaintiff's intestate and so injured him that he died on that occasion.

'And plaintiff avers that on said occasion the defendant negligently caused or negligently allowed said dangerous and deadly high tension wire to be or remain in dangerous proximity to that part of the plaintiff's premises where the plaintiff and the members of his family with the knowledge of the defendant habitually and rightfully resorted, and plaintiff avers that on said occasion the location of said high tension electric wire at said point was without warning to plaintiff's intestate that it was dangerous and deadly, and plaintiff avers that said wire on said occasion was uninsulated and that it was so arranged with other low voltage electric wires as to give the deceptive appearance that it did not carry a deadly or highly dangerous current, and plaintiff avers that as a proximate consequence of said negligent manner in which the plaintiff maintained said high tension wire on said occasion her intestate was as aforesaid so injured that he died.'

SIMPSON Justice.

The appeal challenges the correctness of an order granting a new trial grounded upon failure to direct a verdict for defendant. The trial court so ruled because of his conclusions that (1) no negligence was proven and (2) if proven, the intestate's death was without the range of any rationally possible consequences of the described negligence, therefore not the proximate cause of death.

John Sullivan, husband of plaintiff, was killed instantly in his back yard while attempting to disengage, with an iron pipe, his children's parachute from the 6900-volt power line of defendant which traversed his premises. The wire was uninsulated and at one point was within about ten feet of a part of the house and at the point of accident was about 30 feet from the west side of the house and at a vertical elevation of 20 feet and five inches from the ground. One witness also pointed out that its elevation was about three feet lower 'right next to the house.' There was evidence that the pipe never touched the wire but that the current from the uninsulated wire arced and made contact when the pipe was several inches from the wire. No warning signs were maintained anywhere. The property, Sullivan's home, consisted of about five acres. It was one of the homesteads in Greenwood Homestead Project, a Farm Security Administration venture for small farm homes, which contemplated farming on the premises. Beyond the point of accident from the house was the farm part of the property where deceased had had his garden and hay field and from whence hay wagons had at times hauled hay from the field, and in so doing traversed the way under the line to the road. Suspended on the same poles from cross-arms and about six feet below this primary wire were two small voltage wires and about a foot above these a neutral wire was suspended from the poles. Near where the driveway passed under the line a telephone wire was also strung on the poles between the highvoltage wire and the lower wires.

The damnifying act claimed by plaintiff is the maintenance of this uninsulated line in dangerous proximity to the surface of the land occupied by plaintiff as his home, without any warning of its deadly nature.

We must review the propriety of the trial court's ruling that defendant was entitled to a directed verdict. Decisions of such questions are always difficult. But we are convinced here that the issue of the defendant's negligence, vel non, under the proven facts, should have been committed to the jury's determination.

The rule is axiomatic and is only restated for emphasis. The entire evidence must be viewed in its most favorable aspect for the adverse party and where, from it, a reasonable inference may be drawn adverse to the party requesting it, the affirmative charge is improper. Or here, if from the evidence reasonable inference may be drawn substantiating the claimed culpability of the defendant, a directed verdict for defendant is improper.

Under this governing principle we cannot affirm as correct the withdrawal from the jury of the decision of negligence. The deceased met his death in his own back yard where he and his children and family had a right to live, play, recreate, engage in farming and transact all those normal, customary, domestic affairs which inhere in and around a proper American home of the kind here described. The defendant of course was chargeable with notice of this and with the duty of exercising due care in maintaining the line in accordance with good electrical practice to render it reasonably safe to those rightfully in its vicinity.

The rule of care required in the maintenance of such transmission wire has been thus stated: 'Not only is the current deadly, but the ordinary person has no means of knowing whether any particular wire is carrying a deadly current or is harmless. Therefore, one who attempts to make use of such appliances is bound to see that no injury comes to persons rightfully in proximity to them and who are themselves guilty of no wrong.' 14 A.L.R., note, page 1023.

Our courts are also committed to the doctrine that 'the duty of an electric company, in conveying a current of high potential, to exercise commensurate care under the circumstances, requires it to insulate its wires, and to use reasonable care to keep the same insulated, wherever it may reasonably be anticipated that persons, pursuing business or pleasure, may come in contact therewith.' (Unless, of course, so placed as to exclude the reasonable possibility of contact.) Dwight Mfg. Co. v. Word, 200 Ala. 221, 75 So. 979, 982.

The principle is also declared that it is negligence to maintain an uninsulated highly charged wire, without any warning of the danger, in any place where persons may reasonably be expected to come in contact with it. Oil Belt Power Co. v. Touchstone, Tex.Civ.App., 266 S.W. 432, 439; Southwestern Gas & Electric Co. v. Hutchins, Tex.Civ.App., 68 S.W.2d 1085, 1087; Erikson v. Wisconsin Hydro-Electric Co., 214 Wis. 614, 254 N.W. 106.

Two witnesses of experience in such matters testified that the maintenance of this line in its uninsulated condition and under the described circumstances was not in keeping with good electrical practice from the standpoint of safety. In fact, we draw a substantial inference from the testimony of some witnesses that, near the house and as it crossed the premises, the line elevation from the ground was below the minimum requirements of the National Electric Safety Code approved by the Federal Bureau of Standards, which alone presented a question of negligence. Alabama Power Co. v. McIntosh, 219 Ala. 546, 122 So. 677; City of Dothan v. Hardy, 237 Ala. 603, 188 So. 264, 122 A.L.R. 637.

Viewing the whole evidence in the light of the cited authorities, we must and do hold that on the issue of negligence a conflict was presented necessitating solution by the jury.

The next phase of the case dealing with proximate cause is a more difficult problem. Was the evidence bearing upon the question of defendant's negligence as the proximate cause of the injury complained of entirely free of doubt or adverse inference? If not,...

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