68 So. 154 | Ala. | 1915
Appellant, O. E. Athey, who sued as administrator of Eula May Athey, deceased, for the wrongful death of his intestate, lost his suit because the trial court excluded all his evidence and gave the general affirmative charge in favor of defendants, the Tennessee Company and the city of Birmingham. These rulings present the only question to be considered on this appeal.
The Tennessee Company, after using a considerable volume of water in the proper processes of its steel-mill, discharged it from its premises upon an open space, over which ran several railroad tracks. This water was hot, dirty, and charged with acids to a degree that appears to have rendered the immersion of any part of the body in it for any considerable length of time very disagreeable, but it was not dangerous to life except as a fluid in which one might drown. It was conducted under the railroad, tracks for 200 feet or more in a concrete conduit constructed by the corporate authorities of the city of Ensley, now a part of the city of Birmingham. The testimony and the map offered in evidence show that after leaving this conduit and the vicinity of the railroad tracks this water has been directed through an open ditch two blocks to the south and a block and a half to the east along streets and alleys as shown on the map, to a point midway between Twenty-Seventh and Twenty-Sixth streets on, Avenue C, across and under which it is carried by means of a concrete sewer or vitrified tile placed there by the same municipal authority. Thence it passes south and. east along alleys and across Twenty-Sixth street to a point near Avenue D midway between Twenty-Sixth and Twenty-Fifth streets and some five or six feet inside the southern property line, where it flows into the unguarded entrance to a pipe which carries it underground to
Plaintiff argues that some expressions used in Sheffield Co. v. Morton, 161 Ala. 153, 49 South. 772, conclude this appeal in his favor. We were there passing-on the sufficiency of the complaint as against a demui*rer interposed, and it seems there was considered to be an element of concealed danger in the case stated, something in the nature of a trap, for it is a fact that the mere presence of a wire, though strung upon poles does not give notice at any particular moment that it is charged Avith a deadly electric current, nor, frequently, that it carries any current at all; and we quoted from the Slack-Pit Case U. P. Ry. Co. v. McDonald, 152 U. S. 262, 14 Sup. Ct. 619, 38 L. Ed. 434, a case usually classed with- the original “turntable case,” properly so called, in which first-named case the element of conceal-
Finding no reversible error, the judgment of the court below is affirmed.
Affirmed.