Ward v. Southern Pine Elec. Co-op., Inc.
| Decision Date | 26 June 1981 |
| Citation | 401 So.2d 22 |
| Parties | Rebecca B. WARD, as Administratrix of the Estate of Walton Lee Ward, deceased v. SOUTHERN PINE ELECTRIC COOPERATIVE, INC., a Corp. 79-620. |
| Court | Alabama Supreme Court |
W. Sidney Fuller of Tipler, Fuller & Sikes, Andalusia, and William D. Melton, Evergreen, for appellant.
Richard A. Ball, Jr., of Ball, Ball, Duke & Matthews, Montgomery, for appellee.
Plaintiff, Rebecca Ward, appeals from a final judgment entered on a jury verdict in favor of defendant, Southern Pine Electric Cooperative, Inc. Plaintiff alleged that her husband, Walton Lee Ward, was killed as a result of defendant's negligence and wanton misconduct in conducting its business of distributing electric current and maintainig equipment for such distribution. Defendant denied negligence and raised the affirmative defenses of contributory negligence and assumption of risk. The trial court directed a verdict for defendant at the close of plaintiff's evidence on the count for wanton misconduct. The negligence count was submitted to the jury; it returned a verdict for defendant.
On 28 June, 1978, while Walton Ward and an assistant were installing a citizens' band (C.B.) base antenna at Ward's mother's home on U.S. Highway 84 in Conecuh County, Alabama, the antenna came in contact with defendant's uninsulated, high voltage transmission line and, as a result, Ward was electrocuted. Just prior to this, as they were moving the antenna it contacted a telephone line. Ward's assistant told him to "Watch that line there." Ward responded that "The telephone line wouldn't do nothing."
The power line carried 24,900 volts phase to phase, or 14,400 volts phase to ground, from a takeoff pole at Highway 84 to a transformer on the deadhead pole some 387 feet away in Ward's mother's backyard. The line exceeded the minimum distances, from the house and from the ground, required by the National Electrical Safety Code.
Numerous photographs of the area of the accident are in evidence. They show the location of both the power and telephone lines relative to the corner of the house where Walton Ward was attempting to relocate the C.B. antenna; a single deadhead pole behind the house; two transformers mounted on that deadhead pole; the takeoff pole on Highway 84 and the line running between the takeoff pole and the deadhead pole. It is apparent from these photographs that the power lines are suspended just above the telephone line in the area where Ward's antenna made contact with the power line. All of the lines are in an open area and clearly visible in the photographs.
Plaintiff argues that the trial court erred in giving one of the defendant's requested jury instructions concerning contributory negligence and in failing to give one of the plaintiff's requested jury instructions regarding contributory negligence. An examination of the record shows that plaintiff made no objection to the trial court's action with regard to defendant's requested instruction. No party may assign as error the giving or failing to give a written instruction, or the giving of an erroneous, misleading, incomplete, or otherwise improper oral charge, unless he objects thereto before the jury retires to consider its verdict. Rule 51, ARCP; Gavin v. Hinrichs, 375 So.2d 1063 (Ala.1979).
With regard to the trial court's refusal to give the plaintiff's requested instruction, the trial court noted plaintiff's exception to its action although no objections or grounds therefor were stated by the plaintiff. As we have stated, grounds must be assigned in support of an objection to the refusal of an instruction. City of Birmingham v. Wright, 379 So.2d 1264 (Ala.1980). Plaintiff's failure to preserve error in connection with the jury instructions by timely objecting to them, assigning grounds, precludes an assignment of error regarding those instructions.
Plaintiff further contends that the trial court erred in admitting a portion of the answer to an interrogatory directed to plaintiff while sustaining an objection to the admission of the complete answer. The interrogatory and plaintiff's reply are:
Do you contend that, prior to the accident, Southern Pine had any notice of Ward's plan to move the antenna?
No, but Southern Pine was certainly aware of the potential hazard created by them and should have warned Ward and others in potential danger.
Although the "no" portion of the answer was admitted, the trial court sustained defendant's objection to the remainder of the answer. Clearly, the portion of the answer which was excluded was not responsive to the question and was an...
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