*1
clearly establish the
plaintiff’s of a acceptance remittitur. Valley
Tennessee Sand & Gravel Co.
Pilling,
Ala.App.
(1950), cert. den. 254 Ala. 47 So.2d repudiates this Rule 59(f) winner, as and verdict
view allows the
appellee, press for reinstatement of
the verdict in full hav- its amount after accepted Ala-
ing Lyons, a remittitur.” Practice, Procedure
bama Rules of Civil
Annotated, 59.3. § that,
It is under thus we conclude gives Rule 59(f),
our remittitur accept He the re
plaintiff a choice. can the re accept or he can refuse to
mittitur he suffer a new If ac
mittitur and trial. remittitur, appeals,
cepts the and defendant raise prejudiced right in his
he is not rein that the verdict should
the issue A.R. 59(f), Rule in the full amount.
stated Miller,
C.P.; Wright Federal see also & Civil, p.
Practice Procedure: § However, en cannot
105. than for less judgment
ter a an amount jury, absent consent
that awarded way remittitur under plaintiff by evi light of the issues 59(f),
Rule
dence here.1 is re- the trial court judgment of entry judg- and remanded
versed trial in conformi- for new
ment on motion opinion.
ty remanded.
Reversed and
HEFLIN, MERRILL, COLE- J.,C. MADDOX,
MAN, HARWOOD, FAULK- JONES, JJ., concur.
NER Wright Miller, 2815, p. Civil, & § 1. See 11 Federal Practice and Procedure: *3 Mobile,
Cunningham, Byrd, Bounds & appelleee. for Hawthorne, Balch, Baker, Bingham, Spencer, Jr., Ward, O. & Williams James Blackburn, Mi- Bay
Birmingham, B. and J.
nette, appellant.
BLOODWORTH, Justice. appeal by defendant Alabama
This Company judgment from a $200,000 kins, consulting personal injuries, engineer verdict resident of Taylor, County. taking At Ivy rendered in favor Baldwin LaDonna of this minor, years deposition, party represented age, ten sues each who friend, through opportunity mother counsel and each had the her and next Cher- ry Ann examine the witness. Mr. McCormick. Mrs. also McCormick Jenkins brought subpoenaed ap- for the trial but failed to a derivative suit to recover medi- pear. Initially, expenses cal indicated incurred on behalf of her daughter. deposition would not be ad- Cherry See SC Ann Mc- Jenkins’ plaintiff’s part mitted in Cormick Company, v. Alabama Power following day, case in wherein chief. On the how- appeal Mrs. McCormick’s ever, changed ruling its judgment trial court and the reducing the jury court’s (Mr. deposition favor, verdict admitted. in her judgment is re- Jenkins Birmingham was then either or Atlan- [1975], versed. 293 Ala. 306 So.2d ta.) Company vigorously deposition objected to the use complaint is in counts. The five moved for a continuance such time as until first four charge counts in essence that Al- Mr. could be The trial available. Jenkins abama negligently caused judge’s denial the continuance as- or allowed or maintained uninsulated signed as error. high-voltage power or negligently lines 32(a)(3)(B), Rule Rules of failed high-voltage power lines, to insulate Procedure, deposition Civil makes of a lines said were be in allowed to nonparty against any admissible which, witness *5 dangerously near a tree the ex- party represented taking thereof at the for ercise care, of reasonable it should have “ * * * any purpose when the witness is known was frequently climbed children greater at a distance than 100 miles from and proximate that as result of defend- * * * the place ap- trial of unless ant’s negligence, plaintiff injured pears that the of the witness was absence damaged by coming in with contact said procured party offering deposi- by the lines. Count charges wantonness five in tions.” the maintenance of the uninsulated wires. At evidence, the conclusion of the both disputed is not that the It witness parties for moved directed verdicts. The was more than 100 miles from the Jenkins place trial judge granted Alabama Power’s mo- trial deposition when the was of tion for a directed verdict to the as wanton Company fered. Alabama Power had count granted plaintiff’s motion for a opportunity to examine him when he was directed verdict as to four negligence all deposed. No contention is made that the court, counts. After instructions from the procured by witness’ absence was jury retired and assessed LaDonna’s plaintiff. Therefore, it is under clear damages $200,000. Following at jury 32(a)(3)(B), Rule Rules of Civil Alabama verdict judgment thereon, Alabama Procedure, deposition was admissible. Power Company trial, or, moved for a new it, perceive purpose As of the very we alternative, judgment for notwith- prevent a continu rule is to the need for standing the verdict. When motion ance. overruled, appeal this then ensued. As this Court has writ heretofore
Alabama Company’s arguments Power ten : appeal on are grounds directed to three
its motion for new trial. repeatedly that a have held “We mo- postpone trial is addressed to tion to
I judicial the sound discretion trial, a continu- Prior to court and its refusal to Company Alabama Power allow except here deposition took the ance is not reviewable one Robert L. Jen- paid. going you I am give Ar omitted.)” little (Citations abuse. gross spent days while-—we have two Grier, 239 So.2d ant v. I case and would like to conclude it if (1970). we can. made Company testify dif- would witness
showing that the “THE RETURNS TO CON- JURY facts, if he testified as to other ferently, or TINUE DELIBERATION —” trial find that the not person. do We action, personal injury In a in this case. his discretion abused plaintiff’s attorneys’ part fees are justi- he was contrary, we believe To the plaintiff’s legal damages. Clark Ex allowing trial proceeding fied Ass’n, change Ins. 276 Ala. 161 So.2d used. to be of the witness deposition Therefore, assigns giving error the “instruc II tion” and contends that it resulted in an excessive verdict. deliberating on had been jury After the time, period of some damages the issue of will be noted from the record It that Al- . following occurred: abama object did not and, giving of this “instruction” there- jury “REPORTER’S NOTE: fore, SI, Rule Alabama Rules of Civil Pro- * **) to the Court room to returned is, applies. pertinent part, cedure It question. ask a viz.: gentle- Ladies and “THE COURT: “ * * * party may assign No as er- jury, just asked the Bailiff I men giving failing give ror writ- any if there was bring you in to see instruction, giving ten or the of an erro- might might answer I could neous, misleading, incomplete, or other- hour out an You been help you. have improper charge wise unless oral he ob- ? is the foreman and a half. Who jects thereto before the retires verdict, stating consider its the matter to juror A NOTE: “REPORTER’S *6 his objects grounds which he and the up holds hand. * * *” objection. you ques- “THE Do have COURT: object, appellant tion ? failed to Having cannot complain. simply, now Stated this Court They would like to “FOREMAN: “rulings” reviews made the court below. at will be figure if we arrive know the here, party In such an instance as when a figure, or if there will be some the total object, thereby the rul- fails to invoke figure this sum expense. have to Do we court, ing nothing preserved of the trial is at the sum we arrive or do we consider for our review. at arrived amount will not be the total get this sort of for Can we argument, the child. At oral Alabama Power Com- pany, answer ? in order to its failure to ob- excuse ject, alluded to Alabama Rules of Rule is I don’t know this “THE COURT: Procedure, provides: Civil which consider, you something you but for paid. Lawyers have to be know the will exceptions rulings “Formal or- or unnecessary; are ders of the court but “A is some There JUROR: purposes exception for all for which an might help a de- thought and we reach necessary has it is suffi- heretofore been cision. ruling party, cient that a at the time the sought, is made or That is all I can tell or order of the court “THE COURT: the the action you Lawyers have to be makes known to court the will —that “ * * * or his the court to take which he desires The demurrer to the evi- dence, objection court and to the action of the the motion to exclude the evi- therefor; and, party dence, if a has grounds his charge the with affirmative ruling or without opportunity object hypothesis, to a or hereby are abol- made, is the absence may verdict, order at the time it ished. The court direct a prej- objection does not enter judgment thereafter or an accordance with (Emphasis supplied.) verdict, the motion for udice him.” directed or enter
judgment notwithstanding the verdict rule, under this merely whether not the party This rule abolishes the need “exceptions” reiterating for while formal making the motion has the burden of Only if a “objection.” the need for an proof, in accordance with scintilla object, party opportunity does has no (Emphasis rule.” supplied.) Ala the rule excuse the absence thereof. Company Thus, contend in procedure
bama does not giv former brief, argument, ing charge it contend at hypothesis nor did oral affirmative with Thus, opportunity object. that it has been judge had no If a trial abolished. de error cides we conclude there no reversible there not a scintilla of evidence upon assignment of error directed to the which jury could reasonably attorney’s trial remark as fees. reach verdict defendant, court’s for a he di can
rect submitting verdict without credibility of the witnesses to the if jury Ill testimony their is uncontradicted and un Company Finally, Alabama Power ar impeached. In such case the direction of gues giving that the directed ver the verdict is effective without the assent dict plaintiff negligence for on the counts jury. respects: (1) That erroneous three plaintiff proof, had since the burden of An excellent discussion of the new trial hypothesized should his have rule, directed verdict comparison and a jury for direction to return a verdict charge procedure affirmative plaintiff jury’s belief of the evi found the Committee Comments to Rule dence, Harrison, citing McHugh 50: (2) So.2d 756 That (1957); “The motion for a directed there verdict at was a scintilla of evidence the close of all the evidence will be in jury which could that Ala all have found respects a substitute negligent; peremptory bama charge. Under (3) Rule motion for That there was a scintilla of evidence granted directed verdict will be or de- from which the could found have in any nied where peremp- situation guilty minor of contribu *7 tory charge granted would tory or speak will to each of denied negligence. We present under arguments in Alabama law. See Mc- these detail. Elroy, The Charge General Affirmative Hypothesis, 151, with 1 Ala.L.Rev. 152 (1) (1948). Alabama 50(a), Rule Rules of Civil Pro- cedure, provides inter alia: “Alabama has also had a somewhat unique procedure as known the ‘affirma- “ * * * The the court order of charge tive hypothesis.’ with Where the granting a motion for a verdict directed party having proof the burden of has is without of the any effective assent out by made his case uncontradicted tes-
jury.” timony, the case is to jury sent the but 50(e), special Rule Alabama Civil Rules of Pro- with a ‘if direction that jury the cedure, provides: evidence, believe the it must find for the
491 that the trial plaintiff.’ judge, Coal & on motion for directed Allen v. Southern Co., 363, verdict, may accept 562 the 205 87 So. as true uncontra- Coke Ala. unimpeached testimony courts and in most dicted and (1921). In federal Wright the states, is not submitted to disinterested 9 the case witnesses. described; Miller, circumstances Practice and Procedure jury under the Federal § 2527, Rule p. 561 the directs verdict. Some federal courts (1971). instead court clearly provides that jury have held determine 50(a) last sentence that the must the credibility a direct- the a motion for of and unim- granting order uncontradicted any peached testimony without assent ed is effective of interested witnesses verdict illogical of eliminates the but in other the same courts jury. This circumstances the practice. testimony former required under have held that must be ritual even Miller, former Wright between the Federal But the differences believed. 9 2527, procedure p.. and that followed Practice and Procedure 562 § as great practice Supreme (1971). are not as Court elsewhere United States regard theory. judges expressed Most they thusly: are in has the rule charge hypothesis with the affirmative expressions is “It that numerous true give it peremptory as a form to are be found in the decisions to the as a be construed such fashion as to credibility effect that of an interest- jury. Mc- by the peremptory charge always ed witness must submitted to Charge Affirmative Elroy, The General jury, body liberty is at and that that 151, 152 1 Hypothesis, Ala.L.Rev. with reject upon the testimony sole his jury finds a verdict And if the (1948). ground of these his interest. But broad charge affirmative with contrary to the generalizations accepted cannot be with- aside must be set hypothesis, the verdict variety qualification. out of dif- Such of the contrary the instructions fering facts, however, is by disclosed Tierce, Fire Ins. Co. v. court. Piedmont purpose cases that would be no useful (1944); Pen- 415, 133 245 So.2d 17 by attempt served review them. In 637 Massey, 81 202 Ala. So. ticost v. them, many, most, if there were not while (1919). Thus affirmative suspicion tending cast circumstances submits credi- charge hypothesis witness, upon upon the testimony or the jury, witnesses bility ef- apart that he was interest- from the fact disbe- permitted is not jury fect Ry. Chesapeake v. Mar- ed.” & O. Co. practice witnesses. lieve the tin, 75 L.Ed. U.S. S.Ct. witnesses, disbelieve the is allowed to (1931). why theory reason and in there testimony deliv- they should be. Tf In the interested instant case two wit- unimpeached, ei- upon ered testified, plaintiff and nesses the minor her witness, his ther the manner by testimony of mother. None facts, his connection knowledge mother was to the issue Ala- relevant contradictions, or parties with the Company’s negligence. bama Power Ala- reason, legal fury some other argue bama Power does not * * * Any oth- treat it as true. must plaintiff’s testimony the minor that she imperil er course would fairness climbed the touched the tree and wire impartiality of the trial.’ Crawford stipu- not to be facts were believed. Such State, For the 44 Ala. Company lated *8 outlined, 50(d) Rule abolishes reasons pre-trial the Com- order. charge hypothesis.” pany the did affirmative not even cross-examine her. Furthermore, in view we have taken of the (Emphasis supplied.) case, and the un- physical evidence (from our the federal rule which testimony Under unimpeached contradicted and sufficient copied), majority rule is a hold courts distinterested witnesses with- 492 testimony plaintiff
out the of the minor to support or a in theory scintilla of the justify a directed verdict on the issue of complaint. (Citations of the omitted.) * * * negligence. As Company’s Harris, Kilcrease v. 288 Ala. detail, 245, 259 will be shown in there hereinafter (1972). So.2d 797 was no contributory negligence issue of A a'plaintiff defendant as well as is enti this case because of the lack to of evidence tled to the benefit of the scintilla rule. presumption rebut the ten-year-old that the McHugh Harrison, 266 Ala. 94 So. incapable contributory neg- 2d ligence. Thus, jury there was no issue of credibility as testimony to the of the minor Whether or not requires the scintilla rule plaintiff. given go case to jury dependent to the is upon the substantive controlling law. The Assuming that the case was otherwise a principles applicable to the facts of this proper one for giving of a directed case are found in Blackwell v. Alabama verdict, the trial court did not err fail- Company, 275 Ala. 152 So.2d ing to condition the directed verdict for opinion 670 (1963), an authored for this plaintiff on the jury’s belief of the evi- Court Coleman: Justice dence.
“It has been stated that an electric company maintaining dangerous wire (2) through or near a is bound to antic- ipate persons As is expressly may lawfully set out in Rule climb the tree, 50(e), the preserved “scintilla” to prevent rule is exercise due to in- care standard which persons wire, such must from its keep determine the propriety of such wires granting places a mo insulated tion for directed where climbing verdict. As this children Court tree will wire, has often said: come into contact with the Curtis on Law Electricity, 512. The state- § “ * * * it is only where the facts supported by ment is decisions are such that all reasonable men must court and other courts.
draw the same conclusion from them
question
negligence
affirming judgment
“In
plaintiff,
is ever
considered as
Mississippi
one
of law for the
court said:
court.
Unless the
is
free from doubt
‘*
**
The immemorial habit of
inference,
or adverse
question
is for
boys
small
to climb little oak trees
jury.
Guy,
Alabama Power Co. v.
filled with abundant
reaching
branches
281 Ala.
[*] [*] [*] [*] * * wire which uses such charged with an electric dangerous current), agent (a cases, only is bound civil must know extent “[13] go evidence, jury, to the any danger, very if the but to use the therefrom, arising highest degree practicable reasonable inference of care gleam, glimmer, spark, injury every may furnishes a mere avoid one who trace, lawfully proximity the least its particle, smallest wires
t
think,
electricity
to
applies, we
accidentially or
liable to come
other-
children,
anticipating
of
that
this
in
with them.’
wise
contact
likely to in
especially boys,
quoted
and
are
language,
and
carefully chosen
climbing
sport
of
trees
dulge
adopted
Daltry
Media Electric
v.
dangerous
833,
going into somewhat
etc., Co.,
and
Light,
57 A.
208 Pa.
**
places.
plain-
and
unusual
judicial
has
highest
tribunal
our
Mo.App.
Slater,
Thompson
City of
v.
ly
the measure of
defend-
defined
974.”
S.W.
obligation
described the class
ant’s
and
to
tends the
cured
obligation. Why
every
by
member of which
the faithful
protection that would be
discharge
not the
the law ex-
plaintiff
that
se-
4s
“The Wisconsin
“
‘The first
[*]
[*]
question Court said:
‡
[*]
whether
[*]
Upon
theory can
in that class?
what
conclusion
jury’s
evidence sustains
that
successfully contend
the defendant
negligent. De-
that defendant was
proximity
‘lawfully
he was not
a
that this was
rural
fendant contends
Upon
principle of
its
what
wires’ ?
impracti-
and that insulation was
line
may it rest the claim
law or reason
cal;
on
that
was trimmed
the tree
repress the
boy was
this
bound
it
.that
that would
side nearest the wire so
impulse to
wholly
natural
innocent
and
up
person
climb
for a
difficult
among
shady
up
climb
branches
tree;
the tree
that
that
side of
afternoon,
a
the tree on
summer
climbing
person
that
was so trimmed
its
be relieved of
end that
should
naturally
climb on the
would
repair
dan-
obligation
its
to remove or
away
opposite
of the tree and
side
’
gerous
discover none.”
wire? We can
wire;
the wire was
that
Elec-
Gas
Mullen v. Wilkes-Barre
&
twenty
ground;
that the
feet from
Co.,
54, A.
tric
229 Pa.
there
high;
tree was
and that
protec-
giving other
practical means of
wrongful
“In
of a
an action
death
be sus-
contentions cannot
tion. The
twelve-year-old boy,
contact with
by
killed
to which
Ordinarily the
tained.
extent
climbing
an
wire while he
electric
deadly electric cur-
conveying
wires
tree, the
Carolina Court affirmed
North
rents should be insulated or otherwise
approved
judgment for
and
guarded
question.
(Citations
is a
the rule
Benton North
stated above.
jury question
is a
in this
Omitted.)
It
Co., 165 N.C.
Carolina Public Service
have been
case whether it should not
354,
of
the
to insulate its
trees like the evidence shows
and
use rea-
to
keep
tree in
case
have been situated
sonable care to
the
this
to
same insulat-
ed,
was,
boyish
may
as it
must
wherever it
reasonably
take notice of
an-
climb,
ticipated
impulses
persons, pursuing
and
that
busi-
inclinations and
probability
pres
anticipate
pleasure, may
the
ness or
come
contact
* *
the
ence
children in such trees and
therewith.
Curtis on Law
of
possibility
coming
Electricity,
of
in contact
of
their
510.
§
thereby.
with the wires and
nounced could be cited.’
plied
App.), 81
al
Utilities
cases
S.W.2d
(Citations Omitted.)
supporting
Co. v. Nixon
250,
253.
suffering
the
Texas
principle an
(Tex.Civ.
Gener
Multi
injury
taining
persons
near
[*]
and it
“ ‘5. “An
a
[*]
is bound to exercise due
tree,
a
may lawfully climb the
dangerous
[*]
electric
bound
[*]
wire
company,
anticipate
[*]
through
care to
main-
[*]
tree,
that
or
prevent
Michigan
injuries
persons
“The
said:
to such
from
Court
its wires.” Id. 512.
§
“
opinion
‘In
negligence
the
of
our
“
“The
‘6.
a
maintenance of wire
presents
the
company
defendant
also
a
through
requires
a
frequent
tree
charged
of
It is
with
fact.
inspection,
company
charged
for the
family
knowledge
that
knowledge
swaying
the
that
of
upon
lived
the land
the
was
where
tree
is likely
limbs
to abrade the insula-
growing;
that
children are fond
permit
dangerous
tion and
current
climbing
especially
trees and
those
escape.”
Id.
nuts;
trees
bear
that
its wires
that
they passed
were
as
not
insulated
“ ‘(These
propositions are,
last two
trees;
over
that the tree was
course,
qualified
to be
near-
by the
trimmed, so that in shak-
sufficiently
ness or
re-
remoteness of
tree with
ing
possible
the limbs it
was
contact
spect
human
natu-
beings, and their
wires;
whether the de-
live
ral
probable
there-
associations
company
de-
proper
fendant
used the
with.)’
Word,
Dwight Mfg. Co. v.
gree
de-
was for the
care
221,224,
200Ala.
“Q. you that tree describe Would twenty-nine feet highest ground and the please? for us highest lowest ground. The above the approximately sixteen feet wires were tree, sweet-gum probably “A. It awas feet, respectively, above twenty-one highest feet about 35 tall to the in close passed All platform. three wires point to 40 feet tall. on the tree—35 the tree and trunk of proximity in the embedded wires were “Q. foliage two lower Describe the branches and you it? tree’s limbs. tree as observed grafts The tree had not been trimmed since skin have required also been 1965,1 Company required em- will in the future. ployees had not been in the since even area they 1968 when installed a new transform- Blackwell, In supra, precise Prior January, er. Alabama Pow- question was company whether the electric Company policy inspection er had no was entitled to a directed On verdict. employee supposed report but each duty, element of the decision turned on any dangerous condition he encountered whether there was a scintilla of evidence January, chance. that a might child reasonably been have six-year pe- plan instituted a expected to particular climb the tree in lines, but, inspections riodic of its as of the volved. This held least Court there was at *12 accident,
time of the it had not undertaken a scintilla of such evidence from which the inspection any in this area. jury could and did find that a would child reasonably expected partic to climb the expert The witness testified that Jenkins Therefore, company ular tree. the electric foregoing on the facts Power Alabama anticipate was bound to that a child would Company compliance not in was Applying climb the tree. Blackwell to following industry safety which were codes procedural posture appeal of this case—an by in use at the time well accident from directed verdict —the regulated power companies, viz.: question becomes there a whether was scintilla of evidence from which a Safety Code; 1. National Electrical might could find that child reasona a Clearing bly Line expected 2. Manual for Overhead to climb the particular tree. Conductors, otherwise, Electrical Edison Elec- Stated is the evidence so clear Institute; tric convincing and free in from adverse ference that it would be unreasonable 3. American Electricians Handbook. assume partic a child would not climb ular tree involved ? Alabama Company’s Power own Distri- top bution Standards recommended that the Having carefully considered the evi- gum a sweet tree be trimmed a mini- dence, question, we answer the as alterna- mum primary of five feet below a conduc- tively posed, in the affirmative and con- recognized tor. The standard that a sweet that clude was in re- correct court gum tree was a growing fast tree. moving this jury’s issue consider- by Challenged playmates, her the ten- The tree in neigh- ation. was a residential year-old plaintiff attempted to climb to the occupied by borhood chil- numerous small top groping of the tree. In for a hand- trunk, At dren. the lowest limb was hold, grabbed 7,200 she the uninsulated volt only ground five feet nine from the inches primary conductor her while foot rested on and the ends of several reached branches uncharged low-voltage then line. She ground. almost to the tree was thick- The fell from the tree and when found ly together, foliated with branches close neighbors was The burns unconscious. forming all convenient foot and handholds suffered amputa- her necessitated the way up power to the lines. When thumb, tion fingers, part of three of the coupled with the exis- these factors are hand; part palm of the left a platform, climbing tence of the boards pin placed in the foot ankle above one reasonably say no one could tree was this severely which was Numerous burned. climbing than other a children’s tree. In- affirmatively 1. Company, The evidence does not disclose most favorable to Alabama Power only trimmed, might that this tree had ever been tree the inference be drawn that trimming in had not been done in the area fact trimmed Taking light since 1965. per- duty to such own and owed care Company’s deed, Alabama even testimony sons. Engineer’s District —that climbing uncon- tree—is a children’s Blackwell, supra, requisite
tradicted. alternately stated degree of care com degree of or care being high care con Company Alabama Power When mensurate with circumstances. notice or was without actual tends that it phrases meanings analyzed, the of these dangerous condition and knowledge of the rea degree of care are not different. be care duty of reasonable owed no high under the sonable circumstances trespasser. plaintiff was cause the danger in degree care because of knowledge Lack actual notice highly the maintenance herent main Having erected immaterial. trees. 18 Am. charged wires or near wires, dangerous uninsulated highly tained ; col Electricity cases (1928) see § Jur. trees, proximity to in close Annot., 204, 213 lected at A.L.R.2d knowledge of charged with Company is by a it would have ascertained whatever Ala inspection. Blackwell v. reasonable could have Company, supra; Alabama bama Power duty by cutting discharged its of care *13 42, 166 232 So. Jackson, Power v. Ala. Co. tree, tree, covering trimming down the the Reynolds Iowa 692 cf. Southern (1936); insulation, or protective the wire with a Co., 1927); 958 Cir. (8th 21 F.2d Utilities erecting guard a device around the tree. North Public-Service Benton v. Carolina Annot., cases collected at See 27 A.L.R.2d Co., (1914); 81 448 165 N.C. S.E. 204, 214-217(1953). Co., 88 Light Power Sweeten v. Pacific & 679, 153 1054(1915). Wash. P. undisputed It that the ran wires tree, through the that had not been the tree power stipulated It was that the trimmed, no periodically that wires had the a suspended over lines in were covering, guard de- insulation and that no Power public way not on Alabama vice had been erected. The evidence Blackwell, supra, In Company’s property. that the ten top shows the tree was feet this said: Court primary above the conductor which caused Compa- injury the while Alabama Power may status intestate Whatever “[7] ny’s safety required own a sweet manual occupied as have to Mr. and Mrs. Griff- ice, trespasser gum as intestate was tree to be trimmed minimum five Company], against the defendant primary [Power The below conductor. feet nor the neither the land which owned years, had not been trimmed in seven even that The fact (Citations omitted.) tree. though Company’s Alabama Power manual upon a injured trespassing child was gum grow- a sweet described tree as fast property time of party’s third at the ing. (The condition had existed such omitted.)” injury (Citation defense. a period that limbs had of time the tree 678.) (275 at 152 at Ala. So.2d grown wires!) around the two lower Thus, law, a matter of was that witness testified Jenkins Power trespasser not a as to Alabama plain- existing conditions at the time of Company. any of injury comply tiff’s did not recognized the standards for line clearance Therefore, par- we conclude that on compa- by regulated and used well electric case, this ticular facts of by attempt Alabama No was made nies. law, bound Company, as a matter statement. to rebut this anticipate that climb Power children would Monroe, engineer undisputed Mr. the local It is William that the factual cause by Company, plaintiff’s for Alabama injury called un- contact with the plaintiff, testified as follows: insulated dangerous wire maintained condition Company. that,
“Q.
please
you
?
Would
read
Alabama,
“A. Section
.
.
In
.
foreseeability is
[National
See,
Safety
proximate
g.,
Electrical
cornerstone of
cause.
e.
Code]
Weldon,
Liberty
Life
National
Ins. Co. v.
supply
“A.
exist near
line
‘Where trees
(1957);
Ala.
499 is, unnecessary call perhaps, that we It of contribu- defense posed the affirmative and bar to the obvious attention bench sustained At the time she tory negligence. plaintiff —that it is a rare instance when was but plaintiff injuries, the minor her negli- in a to a directed verdict is entitled ages A child between years ten old. pre- gence action. prima facie and fourteen seven negli- contributory incapable of sumed judgment stand Let the affirmed. Light Ry., & Birmingham
gence. Landrum, 45 So. Ala. Affirmed.
Co. v.
(1907). HEFLIN, MERRILL, J., and HAR- C. testimony that There was WOOD, JONES, JJ., FAULKNER and in the average” or “well above scored concur. “IQ” ad range” test “bright average time after ministered at an undisclosed trial.
accident but before MADDOX, JJ., COLEMAN dissent. long that: has held This Court ages and 14 a child MADDOX, “Between the of 7 (dissenting). Justice exercising incapable of prima facie respectfully majori- I must dissent. discretion,
judgment and
but evidence
ty
strongly on
relies
Blackwell v.
(Ci-
capacity.
may
be received
show
Co.,
275 Ala.
This child suffered severe negligence substantial.
Nevertheless, person every I that believe pass right peers
has a have a of his question. rule” has “scintilla Our against jealously preserved
been even
strong opposition. The “scintilla rule”
means that it is even harder right party
for a take from a by jury. legal princi- trial That is the
ple reason, is the and the involved reason,
only I dissent. So.2d
ALABAMA POWER COMPANY
v.
Jimmy Ray TATUM.
ALABAMA POWER COMPANY
Clarence TATUM.
SC 632 and SC 946.
Supreme Court Alabama.
Jan.