59 So. 217 | Ala. | 1912
Action for personal injuries, by a servant (appellee) against the master. Of the nine counts of the complaint filed, one only — the third — was not affirmatively charged out by the court. , That, Avith a general traverse and special pleas of assumption of risk and contributory negligence, of the sufficiency of Avhich special pleas no question appears to have been made, constituted the issues submitted to the jury. The plaintiff AA’as a lineman in the employ of the defendant, and Avas, AAdien injured, engaged in that service. The point of contention between the litigants really arises in respect of the particular, immediate physical means of his injury. The plaintiff’s theory — and this was accepted by the jury — Avas that a deadly, high voltage Avas communicated to his body through the imparting, by contact, of that dangerous current, to a Avire or Avires of Ioav Amltage Avith Avhich, in the performance of his duty, plaintiff’s person came in contact, either directly or through a broken telephone wire he Avas directed to remove from in or about a transformer. On the other hand, the theory of the defendant aauis that his injury resulted from his bringing his person in contact with the high-voltage wires of its plant. The third count Avas drawn under the first subdivision of the Employer’s Liability Statute (Code, § 3910).
The description of the defect in the ways, Avorks, etc., is as folloAA'S: “The apparatus for attaching said Avires to one of said poles, to Avit, a pole at or near Twenty-Third street and First alley in said city, to wit, a cross-
The plaintiff was injured at a place approximately two blocks from the place whereat the alleged defect existed. Strung on poles and cross-arms between the two places-and beyond them on the line was a wire which carried a highly dangerous current of 8,000 to 4,000 volts, and also a wire or wires carrying a voltage of 110 — a voltage not reguarded as highly dangerous. The high-voltage wire was strung above that of lower voltage. These wires were attached to glass insulators, which, in turn, were attached, screwed, to wooden pins; and these pins were inserted in holes in cross beams or arms which were fastened to the pole.
It was the plaintiff’s contention that the place where the cross-arm was attached to the pole, at Twenty-Third street and First alley, was lower than that of the wire attachment on the' poles on both sides thereof, which condition would permit the drawing of the pin, supporting and screwed to the glass insulator, out of the hole in the cross-arm, by the natural tension of the low-voltage wire as attached, on both sides at greater elevations, to the neighboring poles, unless the pin was so secured to the cross-arm as to overcome this tension ; and that on this occasion the pin was drawn out by the tension of the low-voltage wire, and, rising to approach the level of the attachment of that wire to the neighboring poles, came in contact with the high-voltage wire at that point, received into it a higher and very dangerous current, which was transmitted to the place whereat plaintiff was at work, injuring him when his person
There Avas evidence tending to shoAV that a properly constructed or maintained system of this kind, with cross-arms resting at different elevations, should have the pins, in the loAver cross-arms, nailed or pinioned thereto. There Avas evidence to the contrary.
What due prudence, foresight, and diligence Avould have required, or did require, under such circumstances, was a jury question on the whole evidence; and, if the vieAv of the plaintiff prevailed Avith the jury, then there Avas a defect in the condition of the plant within the charge laid in the third count.
Electricity is an illusive, in a degree uncontrollable, and a dangerous, element. The character and nature of the hazard to which, if unguarded, it subjects persons and property, suggests a measure of caution and diligence commensurate Avith the danger its employment necessarily calls into existence.
The defendant was not entitled to the affirmative charge, on the evidence before us, on the theory that the defect alleged in the third count Avas not shown, or that its presence Avas not the result of negligence of the defendant or of some one for AAdiose neglect the defendant Avas responsible. If there Avas a defective condition in the particular indicated, and in consequence of it low-voltage Avires Avere charged with, and transmitted, the highly dangerous current to the place at Avhich plaintiff’s service required him to be, and he Avas, as appears without dispute, ignorant of the conditions made by the contact of the high with the low voltage Avires, and was injured by the contact of his person with the wire thus charged with the high and dangerous current, it is too
It is contended, however, for the appellant, that there was no evidence that the low-voltage wire was detached from the cross-arm at Twenty-Third street and First alley before or at the time of plaintiff’s injury, so as to impart the highest voltage to the low-voltage wire. It was shown for the defendant that by the use of the testing apparatus, contrived for the purpose, it was found at 7, 12 and 3 o’clock, during the clay and before the injury which occurred about 7 in the evening, that the high-voltage wire in question was in proper order — Avas not in contact with any other wire in that section of the city.
There was evidence to the effect that on the morning next succeeding the plaintiff’s injury the low-voltage wire was detached from the cross-arm, at the place indicated, and was in contact with a high-voltage wire running to the scene of plaintiff’s injury. This evidence, in connection with other phases of the testimony descriptive of the event and of the surrounding circumstances attending it, afforded, if credited, at least a degree of proof that the contact of the wires, as. indicated, existed when plaintiff was injured.—Jackson Lumber Co. v. Cunningham, 141 Ala. 206, 37 South. 445; L. & N. R. R. Co. v. Fitzgerald, 161 Ala. 397, 414, 49 South. 860; Lewy Art Co. v. Agricola, 169 Ala. 60, 70, 53 South.
It is earnestly insisted for appellant that scientific principles, and scientifically accepted effects and results following therefrom, refute, absolutely, the idea that plaintiff could have been injured as defendant understands he describes and ascribed his injury. The bases for this insistence cannot he satisfactorily ascertained on the record before us. In the first place, a photograph of the place of the injury was admitted in evidence, but. it is omitted from the hill of exceptions. It was taken after the event. The plaintiff testified that tlie photograph represented “the condition at the time of the accident, with the exception that it does not shOAV a number of telephone wires that have been taken doAvn since the accident. A good many of the electric service Avires have been removed since that night.” In his testimony, at several places, he referred to the photograph, the hill reciting that he indicated the location, etc., of wires by reference to the photograph. The bill recites that it contains “all the evidence in the case.” This recital is refuted by the omission of the mentioned photograph. If the picture Avas before this court, as it Avas before the trial court below, doubtless a better idea could be had of the situation.
In the second place, we are not able to get a satisfactory definite idea of AArhat particular (ordinarily) ioAV-voltage Avire of the defendant was in contact with the broken telephone Avire, or at Avhat particular place plaintiff was, on or about the telephone pole on which he Avas engaged, when injured, removing from contact
In this state of the evidence before us, which, with other evidence not made available to us, -was before the trial court, we cannot review the action of the trial court in refusing, at the request of the defendant, charges numbered 3, 5, and 6, which the reporter will set out.
Charge 2 was well refused. It reads: “The fact that plaintiff was injured on the occasion of the accident, no matter how seriously, does not entitle plaintiff to recover a verdict in this case.”
If the purpose of the charge was to advise the jury that averred negligence shown, and not the mere fact of injury, however serious, was essential to entitle plaintiff to recover, it was not so drawn as to particularly and only assert that sound idea. The fact of injury, if coupled with negligent conduct or omission proximately causing the injury, is, obviously, an element of the right to recover therefor. The charge was calculated to mislead. It was well refused.
The pttaintiff’s witness Tkornbury was asked this question, to which defendant’s objection was overruled: “At the point of contact between this secondary wire and the arc circuit was there any burning into the wires?” This inquiry had reference to the condition of contact at Twenty-Third street the morning after the injury. It sought the eliciting of a circumstance tending, if credited, to prove the source and occasion of the high current to which the testimony for plaintiff ascribed his injury. There was testimony to the effect that the voltage (110) usually carried by the secondary wires could not have injured him as he was'injured.
Affirmed.