Western Union Telegraph Co. v. Jones

• Decision Date: 07 November 1914
• Docket Number: 743
• Citation: 190 Ala. 70,66 So. 691
• Parties: WESTERN UNION TELEGRAPH CO. v. JONES.
• Court: Alabama Supreme Court

66 So. 691

190 Ala. 70

WESTERN UNION TELEGRAPH CO. v. JONES.

No. 743

Supreme Court of Alabama

November 7, 1914

Appeal from Circuit Court, Madison County; D.W. Speake, Judge.

Action by Geraldine Jones, as administratrix, etc., against the Western Union Telegraph Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Forney Johnston, of Birmingham, and Cooper & Cooper, of Huntsville for appellant.

Virgil Bouldin, of Scottsboro, and Douglass Taylor, of Huntsville for appellee.

MAYFIELD J.

This is an action under the homicide statute (Code 1907, § 2486), and it seeks to recover damages of the defendant for negligently or wrongfully causing the death of plaintiff's intestate. There were no eyewitnesses to the circumstances surrounding the death of intestate; he was dead when found at an early hour of the morning, in or near a public street or sidewalk in the city of Huntsville. His body, when found, was lying across a broken wire of the Huntsville Railway, Light & Power Company.

There had been a severe electrical and wind storm in the city of Huntsville on the night preceding the finding of the body of deceased. This storm caused considerable disturbance of the electric wires of all the electric companies in the city of Huntsville, and some fires which had been started were attributed to the breaking or crossing of such wires, caused by this storm. As to this, the defendant interposed the defense that the accident was unavoidable, as being the act of God--the doctrine of vis major.

The case was tried on two counts. The negligence alleged in the first count was that:

"The Huntsville Railway, Light & Power Company maintained poles and lighting wires substantially in line with those of defendants. Said lighting wires of the Huntsville Railway, Light & Power Company were regularly charged with an electric current greatly dangerous to human life. The defendants, with knowledge or notice of these facts, negligently constructed or maintained one of their guy wires attached to one of their poles in such dangerous proximity to one of said heavily charged lighting wires that by the vibration of said wires from natural causes, said guy wire came in contact with and fused said heavily charged lighting wires, causing it to fall and be down on the surface of said public street."

The negligence alleged in the second count was that:

"The Huntsville Railway, Light & Power Company, maintained poles and lighting wires substantially in line with those of defendant. Said lighting wires of the Huntsville Railway, Light & Power Company were regularly charged with an electric current dangerous to human life. The defendant, with knowledge of these facts, did negligently erect or maintain one of its poles in such close proximity to one of said heavily charged lighting wires that said lighting wire came in touch or contact with and vibrated against said pole, thereby causing said heavily charged lighting wire to break and fall into said street."

It is seen that the only negligence relied upon was that the defendant telegraph company either so negligently constructed, or so negligently maintained its lines as to allow one of its guy wires or poles to be in such close proximity to a heavily charged and dangerous electric light wire of the Huntsville Railway, Light & Power Company that it came in contact therewith and fused said heavily and dangerously charged wire, thereby causing it to fall and to come in contact with intestate.

The defendant pleaded, in short, by consent, the general issue, unavoidable accident, contributory negligence, and release and discharge. The court gave the affirmative charge for the plaintiff on the issues of contributory negligence and release and discharge, and submitted the case to the jury, with instructions as to the other issues. The trial resulted in verdict and judgment for the plaintiff in the sum of $2,424.60, and costs, from which judgment this appeal is prosecuted. Each count stated a good cause of action, and was not subject to the demurrer interposed. There was therefore no error in overruling the demurrer to each.

There was no evidence showing, or tending to show, negligence on the part of plaintiff's intestate, and it was not shown to be a case in which the doctrine of res ipsa loquitur could be applied against the intestate, to show negligence in coming in contact with the wire, or his otherwise contributing to his own death. The court therefore properly gave the affirmative charge for the plaintiff on this issue.

The proof also utterly failed to show any release or discharge of the defendant from liability in this, or in any other, action for the wrongful death of plaintiff's intestate. The release was expressly and carefully limited to the Railway Light & Power Company, and it was even attempted to exclude any other person or corporation jointly liable with the railway company. Whether that could be done we need not decide, as there was no proof tending to show that this defendant and the railway company were jointly, and not severally, liable. If they were both liable, under all the evidence they were liable severally, and not jointly. Neither one of these two companies had any interest or concern in the discharge or release of the other from liability for the death of intestate. So there was no error in giving the...