Wright v. J.A. Richards & Co.

• Decision Date: 11 April 1926
• Docket Number: 6 Div. 324
• Court: Alabama Supreme Court
• Parties: WRIGHT v. J.A. RICHARDS & CO.

108 So. 610

214 Ala. 678

WRIGHT v. J.A. RICHARDS & CO.

6 Div. 324

Supreme Court of Alabama

April 11, 1926

Rehearing Denied June 10, 1926

Appeal from Circuit Court, Fayette County; Ernest Lacy, Judge.

Action for damages for wrongful death by Dezzie Wright, as administratrix of the estate of Delbert Wright, deceased against J.A. Richards & Co., a partnership, and the individual members thereof. From a judgment for defendants plaintiff appeals. Reversed and remanded.

Foster Rice & Foster, of Tuscaloosa, for appellant.

Bankhead & Bankhead, of Jasper, S.T. Wright, of Fayette, and Huey & Welch, of Bessemer, for appellees.

BOULDIN J.

In the construction and maintenance of high voltage wires over and along the streets of a city or town, the management is charged with a high degree of care for the protection of the public in the ordinary use of the streets. The duty of care is commensurate with the danger--a danger enhanced by the fact that the presence of the electric force is often invisible and may give no warning save by the deadly shock.

That such live wire is down, in position to come in contact with a person upon the street, no extraneous cause appearing, is prima facie evidence of negligence, casting upon the management the burden of going forward with evidence tending to acquit itself of negligence. Res ipsa loquitur. Ala. City Ry. Co. v. Appleton, 171 Ala. 324, 331-332, 54 So. 638, Ann.Cas.1913A, 1181; Western Union v. Jones, 190 Ala. 70, 74, 66 So. 691; Bloom v. City of Cullman, 197 Ala. 490, 496, 73 So. 85; Dwight Mfg. Co. v. Word, 200 Ala. 221, 75 So. 979; Sheffield v. Morton, 161 Ala. 153, 49 So. 772; Lawson v. Mobile Electric Co., 204 Ala. 318, 85 So. 257; Curtis' Law of Electricity, § 594, pp. 905, 906; 2 Joyce on Electricity, § 608, note, § 450, note 30; Ann.Cas.1913D, 908; 20 C.J. 381, note 24; 9 R.C.L. 122, § 30; Words and Phrases, "Res Ipsa Loquitur."

The evidence was without dispute that the high voltage wire of defendants had parted and the detached end had fallen to the ground. No intervening cause appears other than the prevalence of rain, wind, and lightning the preceding night. No plea or claim is made that these were of such unusual violence as not to be reasonably expected and provided against by proper equipment and due care in maintenance.

There was evidence tending to show that the deceased, while walking along the street, came in contact with this suspended wire and was killed. A discussion of the evidence on this issue in detail would not be fitting. Sufficient to say the issues as to whether death was caused by coming in contact with the wire, and whether deceased by his negligence proximately contributed thereto, were for the jury.

After plaintiff rested her case, defendants introduced evidence tending to show due care in inspection and management, and good condition of the wire and its insulation at the place of the accident.

After defendants rested, the plaintiff offered to prove by the witness Cantrell that, prior to and up to about the time of the accident, he had frequently observed the wires, where they ran through the branches of trees along where the accident occurred, "sparking" and "spitting fire," and that the insulation was off. The court sustained objection to this evidence upon the ground that it was not in rebuttal, holding that evidence of defective condition should have been offered as part of plaintiff's original case. In this the court was in error. The plaintiff having made a prima facie case of negligence on that issue, the burden was on defendants to proceed with proof of due care. The evidence of Cantrell was in rebuttal of such testimony.

So also, as to the evidence of John Humber, a witness for plaintiff in rebuttal. Having...