Western Union Telegraph Co. v. Jones

• Decision Date: 30 November 1916
• Docket Number: 8 Div. 890
• Citation: 73 So. 470,198 Ala. 208
• Parties: WESTERN UNION TELEGRAPH CO. v. JONES.
• Court: Alabama Supreme Court

73 So. 470

198 Ala. 208

WESTERN UNION TELEGRAPH CO. v. JONES.

8 Div. 890

Supreme Court of Alabama

November 30, 1916

Appeal from Circuit Court, Madison County; R.C. Brickell, Judge.

Action by Geraldine Jones, as administratrix, etc., against the Western Union Telegraph Company. From judgment for plaintiff defendant appeals. Affirmed.

Forney Johnston and W.R.C. Cocke, both of Birmingham, and Cooper &amp Cooper, of Huntsville, for appellant.

Bouldin & Wimberly, of Scottsboro, and Douglass Taylor, of Huntsville, for appellee.

THOMAS J.

This is the second appeal in this case. In the opinion on the first appeal (Western Union Telegraph Co. v. Jones, 190 Ala. 70, 77, 66 So. 691, 694), this court said:

"There was evidence tending to show that the dangerous wire was in contact with one of the defendant's poles and that, if the pole was very wet, it might, by this contact, fuse the wire and cause the injury complained of. So there was some evidence to support the second count, and the court properly refused the defendant's requested affirmative instruction as to this count."

Did the lower court err in refusing to give the affirmative charge for the defendant? And did it err in refusing to grant appellant's motion for a new trial on the ground that the verdict of the jury was contrary to the weight of the evidence? These were the questions presented on this appeal.

On the trial, John Williams, a witness for the plaintiff, testified that when he learned that Mr. Schuyler Jones was killed witness went down there where deceased was, and found him lying on his face, on the sidewalk, with a wire right under his breast; that that telegraph pole went up between the wires of the light company; that the light wire that fell was swinging very close to that telegraph pole; that witness did not think that it was over six or eight inches from the pole; that he knew it to be a fact that the wire that fell, that light wire, in rainy weather would vibrate against and cause "arcing and flashing" with that pole; that he had seen that, had seen it plainly but a short time before this accident, that "it looked like the place was afire"; that witness was a couple of hundred yards from it; that it lighted up the darkness and the buildings around there, "made a right smart little light"; that witness noticed it and thought it was a warehouse on fire, then on investigation found that it was this wire; that on windy damp weather, this arcing and flashing would show that light; that there was a considerable little notch on the side of the pole where the wire had struck and burned it, that it showed a charred effect; that there was a notch on that pole about as wide as your hand and about half that deep burned into the pole; that witness had noticed this burning about 20 or 30 days before deceased was killed.

John McClure, a witness for the plaintiff, testified to the effect that at the time of Mr. Jones' death witness was connected with the light company, as superintendent; that he was acquainted with the wires on Jefferson street; that they carried about 2,300 volts; that it would be dangerous for a man to come in contact with them; that they would cause his death; that the telegraph poles run between these wires; that witness had seen such a wire as this, charged with the voltage that this wire carried, burn in two when the end of it came in contact with the wet ground; that it will get very soft after the insulation is burned off; that witness had seen it as limp as a rag; had seen it burn in two, in three or four places. Witness...