Decatur Light, P. & F. Co. v. Newsom

59 So. 615 | Ala. | 1912

SOMERVILLE, J.

Plaintiff’s intestate, a girl 18 years of age, was killed by contact with a telephone wire charged with electricity. The wire had been disconnected at the service end, which end was firmly attached to a telephone post. During a severe wind and rain storm, this dead end became detached, and the wire fell across the service wires of the defendant company, which it crossed several feet above at right angles, and the loose end dangled down across the gateway entering the premises of intestate’s home. This occurred about 10 o’clock p. m. About 7:15 o’clock next morning, the intestate had occasion to go through the gate on a neighborhood errand, and then pushed the wire aside without harm. On returning a few moments later, she again caught the wire, which was too low to pass freely under, and received the fatal shock.

One of the plaintiff’s witnesses testified that the insulation of defendant’s wire at the point of contact with the telephone wire was worn off or defective. The defendant’s witnesses testified that the wire was in perfectly good condition in this respect, and that the construction, equipment, and use of defendant’s system at this point and elsewhere was safe and proper, and in accordance in all respects with the best equipped and managed systems of other light companies in other cities.

The defendant’s witnesses, chiefly employees or expert linemen or electricians, testified that the storm raged between 9 and 10 o’clock p. m., and was of unusual severity; that trouble was in consequence expected with the wires; and that about 7 o’clock next morning a force of men were started out to examine the wires and repair breaks, when found; and that these were engaged in this work at the time the intestate was killed. The defendant pleaded the general issue, and also contributory negligence on the part of plaintiff’s intestate.

The evidence was quite voluminous, and, on its various phases, a large number of written charges were requested by the defendant, some 30 of which the court refused to give, and these rulings make up the bulk of the assignments of error.

The original complaint described the defendant as “Decatur Light, Power & Fuel Company, a corporation.” Against the defendant’s objection, the plaintiff was allowed to amend by correcting the name of the defendant so as to make it read “The Decatur Light, Power & Fuel Company,” etc. This amendment was properly allowed, and needs no argument for its vindication. — Singer Mfg. Co. v. Greenleaf, 100 Ala. 273, 14 South. 109; S. A. & M. Ry. v. Buford, 106 Ala. 303, 17 South. 395; Lewis Lumber Co. v. Camody, 137 Ala. 578; 35 South. 126; Caldwell v. Br. Bank of Mobile, 11 Ala. 549.

Refused charges 10, 12, 18, 23, 31, and 50 are substantially and fully covered by written charges 4, 5, 6, 7, 8, 9, 11, 14, 15, 17, 19, 24, 48, 32, 35, and 37, given at the request of the defendant, and we need not consider their merits.

Refused charge 30 is fully covered by written charge 48, given at the request of the defendant.

Refused charge 29 is faulty in hypothesizing heedlessness as the equivalent of contributory negligence. Charge 27, given at the request of the defendant, correctly states the law on this subject.

Refused charge 34 is fully covered by written charges 27 and 44, given at the request of the defendant.

Refused charges 31, 41, 46, 37, and 51, to 56, inclusive, each instructed the jury merely to find a certain fact. These charges were objectionable, because they gave undue prominence to the several facts referred to; but, more especially, because parties have no right to require the jury to merely return a series of special findings of this sort thus already predetermined by the court. If the evidence is without dispute upon a particular point involved in the main issue, its legal effect should be stated to the jury, in so far as it may be decisive of the issue, when requested in writing in the proper form; or, in charging the law applicable to the case, such undisputed facts may be assumed to be proven. The jury may, and indeed must, find one or more facts as the basis of every verdict; but such findings need not and should not be formal and distinct. It is enough that they find a verdict expressive of the facts as determined from the whole evidence. These charges, if given, would have imposed upon the jury the duty of registering nine special findings of evidence merely — a practice not to be tolerated, and certainly never authorized by law. At common law, instead of a general verdict, the jury might, at their discretion, return a special verdict finding all the material facts essential to a judgment to be rendered thereon by the court; but they could not be directed to do so. — 29 A. & E. Enc. Law, 1028.

Refused charge 40 is also subject to the objections just stated; and, there being some evidence that the defendant’s wires at the point stated were defectively insulated, it invaded the province of the jury.

Refused charge 21 makes an unnecessary touching of the wire by the intestate negligence per se. This is plainly an improper test, and the charge also invades the province of the jury on the issue of contributory negligence.

Refused charge 26 is argumentative and confused. It also requires the jury to find several special facts. And, again, it attempts to withdraw from the jury the question of the intestate’s knowledge of the danger to be apprehended from touching the wire, which, on the evidence, was a jury question.

Refused charge 36 is confused and unintelligible. It also gives undue prominence to particular parts of the evidence, and requires special findings of several" facts.

Refused charge 33 is incomplete in its grammatical structure and obscure in its meaning. In fact, it has no meaning as framed.

Refused charge 39 is faulty iu excluding all consideration of the negligence vel non of the defendant as to its inspection and repair of its lines after the storm; that is, whether such inspection and repairs were made with due promptness under the circumstances shown. It is also fatally obscure and misleading in its reference to a fact not in evidence, viz., that the telephone wire falling across defendant’s wire “could not ordinarily have been inspected (?).”

Refused charge 42 gives undue prominence to certain facts, is argumentative, and is not a correct statement of the law of contributory negligence as applicable to this case.

Refused charge 43 invades the province of the jury as to the sufficiency of the facts in evidence to warn the intestate of the dangerous character of the wire. It also erroneously charges as negligence her failure to exercise diligence to discover an unknown danger.

Refused charge 11, which is the general affirmative charge, is argued only upon the theory that the intestate was guilty of contributory negligence as a matter of law. Unquestionably this issue was one of fact to be determined by the jury on the whole evidence, and it was properly refused.

We have carefully examined and considered the refused charges in the light of the evidence before the court, and are satisfied that their refusal was without prejudice to the defendant.

It may be that the verdict was opposed to the overwhelming weight of the evidence; but that question is not raised by this appeal.

Affirmed.

All the Justices concur.