Demopolis Telephone Co. v. Hood

REPORTS ALABAMA Williams, Telegraphs Ala. <&wkey;20(4)— 2. telephones Alle- & I. Co. Ala. F. v. gation height of unusual ob of car on which to 99, jectionable as the authorities So. standing injured plaintiff was when wire re argument collected unnecessary. held State, also, See, v. Anderson viewed. against telephone company In action for supra. Espy, So. Watts v. injuries freight employee standing to railroad on reviewing [8, action of 9] The rules strung car from contact with wire too arguments objectionable trial court to clearance, required low for by this are declared remarks of counsel allege height, was not that car of unusual since (1) That, the trial court court to where be: failure, defendant’s care, of reasonable exercise adversely appellant, mo or where rules to have foreseen because of un- argu duly height made usual of car was a tion is to exclude matter of defense. counsel, remark ment or adverse Telegraphs <&wkey;I5(3) 3. and telephones reserved, -Duty— ruling exception providing stringing clearance wirea brought be court can before across railroad track stated. appeal ruling; (2) that such from on .such Telephone stringing company, in wires may ruling a mo be the basis made ample track, provide railroad across clearance, standing should trial, the refusal tion for newa injure so that wire tall man will not grant based such motion new trial for a high duty use, on car in common its thereon will be Moreover, court. reviewed being average height to man limited rid- province of ing it is also within car of usual size. prejudicial highly this nature of the sel and because of the Telegraphs <&wkey;20(5) 4. and telephones —Res argument of coun or remark injuries ipsa loquitur doctrine applicable probable effect strung wire across track. railrqad re be held ineradicable exclusion injuries employee In action for to railroad counsel, error buke of and reversible injured standing freight con- while from car predicated be thereon. strung tact wire across track without suffi- Stone, Judge Minnis, supra, Wolffe clearance, v. presumed it will cient that tele- be company phone ipsa great wisdom, negligent; to a courts exhorted doctrine of res loquitur being applicable. discharge judicial highest functions gov- of free such fundamental institution Telegraphs 15(3) c&wkey;^ 5. telephones —Rail- impartially “to see ad- ernment the law -to failure with safe employee road’s provide pos- ministered, prevent, and to as far neg- defense action for employee’s place ligence improper, sible, all influences extraneous wires. finding box.” into from their telephone company In action necessity prevent vitiating injuries employee The same railroad contact with juries, strung entering across without sufficient into track causes the verdicts provide employee clearance, had, railroad’s failure and for trials should which new place to work was no defense. with safe State, upon in Leith was commented v. State, So. Anderson Ala. supra; Telegraphs <&wkey;>!5(3) and telephones 6. —Fail- tele- Gen., Quattlebaum, Davis, Dir. employee notify ure of and Watts So. no- overhead wires held company phone State, supra; Espy, Moulton injuries to other em- in action defense 454. ployee. aside, telephone company the court set the failure of Eor In action injuries response railroad’s from contact motion a new in trial to defendant’s strung suffi- track without across improper wires ar- verdict won clearance, failure of other cient railroad to judgment gument, circuit notify telephone company of defect remanded. reversed the cause wires, pursuant to of overhead in construction and remanded. Reversed company arrangement working and' between employee, no defense. - such other ANDERSON, J„O. and SOMERVILLE BOULDIN, JJ., concur. joint Negligence <&wkey;l5 tort- Liability is several. feasors injuries resulting from negligence concurring or more tort- of two 35) (102 several, can defend neither feasors HOOD. TELEPHONE CO. v. DEMOPOLIS other, duty and a failure defendant, 834.) Div. negligence the sole whose injury, concurring proximate (Supreme cause of Court Alabama. Oct. 1924.) damages. Rehearing compensatory Nov. full Denied liable for c&wkey;40l servant I.Negligence Master —Third <&wkey;lll(l) General averment claiming creating benefits Workmen’s duty are where conditions sufficient himself within Law must shown. suing complaint Railroad conditions from sets forth Where arose,, gen- track with- duty care toward which eral clearance, was not sufficient is sufficient. out averment Digests and Indexes <g^eFor see same KEY-NUMBER other cases DEMOPOLIS TELEPHONE CO. v. HOOD . 217 A.la.) negative (Acts 15. Negligence &wkey;>l40Charge precluding Law terms of re- — p. 232, 1919, of such company, 32), covery, giving injuries accident, benefits if resulted from § cases, telephone properly in and held act refused. certain thereof, if benefits entitled to Charge, plaintiff could not recover if itself within jury injuries find from evidence sustained accident, properly result of held re- nn 9. &wkey;^20(l)Right Telegraphs telephones — fused. against federal act under railroad action &wkey;>20 Telegraphs telephones (7) Neg- against employee’s tele- no phone action defense to — ligence wires without company. sufficient jury. clearance held for against In action against telephone company In action injuries strung employee wires to railroad injuries employee n acrosstrack without sufficient of railroad from contact right clearance, strung with wires track without suffi- across employee against railroad action on clearance, question compa- cient Employers’ Liability (U. under Federal S. ny’s jury. negligence held Comp. 8657-8665) no defense. St. §§ Appeal Marengo Court, from Coun- Circuit &wkey;>369Testimony 10. Witnesses that witness — ty Judge. ; McKinley, John employer was ordered to attend trial held affecting credibility. to disclose interest as personal injury by Action against telephone company for In action Wiley against Deinopolis Tele- S. Hood employee railroad from contact phone Company. judgment plain- From a strung with cient track without suffi- wires tiff, appeals. Affirmed. testimony clearance, of another n Exception to this railroad as taken witness that rail- pay .way charge: road was portion that he of the court’s oral sufficiently there, "was interest ordered held disclose you reasonably “But from satisfied affecting credibility. witness as the facts ease truth of the evidence alleged complaint, first count Telegraphs telephones <&wkey;>20(5) —Evi- prima that would would a facie case make out which employer’s procuring dence dence, aid in as to evi- to recover entitle against to claim inad- case, has established to unless employee’s missible in action tele- satisfaction the reasonable phone company. case, or more of the de- evidence in this one' against telephone company In action for in- contributory pleas negligence.” fendant’s juries contact Birmingham, Huey Smith, with cient road & across track without B. F. suffi- activity clearance, as to Bessemer, appellant.* of rail- Welch, evidence employees aiding procure An afford accidental does X-ray photograph showing injuries, and as to grounds recovery, should for a filing, such of claim charged this effect. have been Montevallo railroad, held excluded. 131, Little, Min. Ala. 93 So. Co. v. 208 873i &wkey;>380X-ray photograph Co., 84, 12. Evidence 51 Anniston 164 Ala. held Williams v. E. sufficiently identified. 222, 385; Crossett, T. Ala. N. 207 X-ray oral injuries, 92 So. 461. The erred in its photograph photograph action for sufficiently McWhorter, charge jury. held identified as the G.A. S. v. injuries. taken 269, 84; R., Ala. B. L. 47 So. & P. Co. v. 156 Hayes, 178, 1032; v. 153 S. A. 44 So. L. — X-ray &wkey;>359(4) 13. Evidence Kay, 523; 554, Fla. F. 73 74 So. P. I. Co. expert, explained by expert taken testi- Draper, 103, de- v. 187 Ala. 65 So. 923. The given mony by deposition, held admissible. fendant was entitled to show the interest X-ray injuries, photograph, action for Railway Company, employer n shownto have been taken by expert, and ex- plaintiff, H. the Kress & this case. Smith v. S. testimony plained by expert given by deposition, 436, 378; 210 Ala. 98 So. &L. N. held admissible. York, 305, 676; Wig- 128 30 So. 2 v. 949, (2d Ed.) X- &wkey;=233(3)Charge referring on Evi. .14. more ray photograph 969. The Trial “first count,” erroneously to “one more of' the defend- admitted pleas contributory negligence,” ant’s School, held 230, v. 90 W. Ya. evidence. Jenkins objectionable. 323; 560, E. R. S. 22 A. L. Greenwood 110 Charge reviewing Walsh, App. 82; in detail the averments Café v. properly placing complaint, of. the burden of Sinsheimer, Or. 214 Pac. Jones v. 107 proof, correctly stating the facts to be 375; Phillips (Del. Super.) Traction Co. v. recovery, stating found to warrant Ky. 241; Covington Bowen, Atl. v. 191 reasonably could recover if Yarbrough Carlson, 532; 230 S. W. alleged satisfied of truth of facts in “first 739; C., Q. Up- 202 Pac. B. & Or. n countof the complaint,” unless defendant had ton, 379; A. 194 Fed. 115 O. Carlson O. established “one or more of the defendant’s Benton, Ann. 66 Neb. 92 N. W. pleas contributory negligence,” held not ob- Ry. 159; jectionable. Franks, & W. Cas. Prescott Digests tg=»For see same oases KEY-NUMBER Indexes REPORTS ALABAMA ject C. railroad’s E. case. 14; v. not have been part plaintiff’s injuries. it was was not of unusual height too negligently an raise tact ment, Co. catch Postal Ala. So. 266. general The low, sonable care car or ance a Ark. charged and, tions from which Curtis across a railroad graph duty tion. manifestly plaint as standing on foreseen, edented I. After It It is BOULDIN,. ^[4] Pettus, ^[1] I. [2, misleading Little, L. which negligently not to low, overhead the Southern Canterbury, riding Standridge Martin, that duty 3] There was in so is averred and whether of Supp. This S3, If a had L. & N. v. Sweet, shows that used, Co. v. not on Elec. 460. A while top of a 61 common Telegraph measured man, averment which the height or the setting J.C. arose. Such erect on the 208 Ala. 163 S. he plaintiff, such employé is to the tall man Puller wire across Pla. clear a the the occasion to passing, the car on general complaint dangerous reached such unusual or constructed the limited to the man owner. Lofton v. Jacksonville men passing Jones, riding 57 wire, charge. personal J. proper negligence proximately duty wire, 293, allowed matter was freight duty N. J. use. out of that danger Lynne, W. track, riding. & Railway Company defendant’s 131, and over The action man the Cable riding no need terms that Linden, in course while height. 54 So. Wigmore, of Lapsley, on a injured by an,d under with the these negligence top for defendant to which he was Law, 224, the sets forth the the 93 So. 873. It would duty duty pass Western Union Tele Montevallo Min. R. C. a the injuries. car, known to be used as the exercise of of provide ample could said 199 hung so of Co. accident standing on a railroad track is cause of Ann. Cas. car 959; trial court wire was so car on 203 Ala. conditions, a railroad same to a he came in under being defensive. as well as the of of L. car of the size not have the of usual is aver injured. appellee. placing contact care high Excelsior E. 30 Atl. his 1156; Selma, Jones, 631, the condi low The com- the situa which he sufficient. the shown, erect does Where too standing into So. 691. average ployee employ- unprec recover become the toward height, or low caused 1916A, track, inter- clear speed as to wire, it been wire size. low, give con- rea The low the up- Co. the R. a highway. the rightfully passing under the overhead ployees ing fendant. That relation The vide case than this bar rightfully using way Company, the track. These facts did sary used. plaintiff brought plaintiff had The relation wire ple was to be struction rangement fully from tort-feasors duties any employee provide duty res remedy of road and ance. a substantial duty Ry. 638, gent fendant does not comes liable for full disclosed that duty of track. One other. The construction and [5, [7, wire in way prior the clearance arrangement ipsa loquitur applies. use Southern part over the same the train, duty any negligent is Co. v. Ann. duty 6] It 8] does not failure in the there concurring negligence A the not different in part The The the would ascertain what is failure of plaintiff personally, duty a infringe was an failure so to the to to a of its plaintiff, follows In the latter case so Gas. whether notified the such would defendant’s thát comes safe defect cost. Appleton, premises. sole is several. of defendant. injury? element'of wire over danger of plaintiff provide against danger far as sole Railway Company Southern readily is to highway, acquit 1913A, and in the negligence. at duty very properly, place the position employee of between this within upon overhead merely superior to There merely ground, failure duty the time of any is due to contact right line did not easily If compensatory damages. attract attention. any to aver do, concurring principle 171 Ala. the Railway the of work for If no failure agent which the so, or across a while the class of is, Railway Company. operation Neither not make it constitute such em that is Was the the main line and the action defect right so a sufficient clear- provided a discharge : wires, the of two more The doctrine of grow part the use of in that company, long failure of that occasion Southern Rail- The give defendant and any or a man defendant be rightfully City was work Company of the other. duty 324, had part defend can the goes. it, prove his placing proximate of out of his- as it was complaint of a rail- person notice or such ar or a is resulting case, the or raises a a G. & A. without duty persons the regard, a case the de the 54 So. was. of his public neces- of its which right- negli right wire. class case,. duty that spur Am- pro- con The em one the de- on be- of in at of a cases for a act, make a the terms n Workmen’s refuses attention of had ed to divert shows that injury, cure the action. company Act. that jury It Federal witnesses were such ness Jones testified that way Company, the a fracture of the second lumbar the Southern as evidence error out to the science, making taking taken, identifying fecting nection with the timony taken read closes ing unseen in showing company that is the ing only petent with part sufficiently obvious. disclosed evidence (2) ^[9] An [10,11] The The [12,13] Objection was not 8657-8665) show American That filed a claim read disclosed training section he was ordered there. This by Neither would Like along in the date. the number work X-ray by reader and testified evidence X-ray question. his an tended to show claimant June the witnesses showing Employers’ refusing the the record. An the X-ray it; voluntary activity any The the Accordingly, X-ray jury necessary identified number credibility. upon with the testimony tending unknown, plaintiff. its of an reading the qualified expert; section 32 of to do bony photograph photograph jurisprudence. constitute interest of for the of such Railway photographer claims under and that identification. evidence, photograph, the employees makes afforded issue pay must testimony, two that it should be The “490,” expert; by is made so; discovery structure of the Liability features was, placed about anof party his qualified by experience right injury. grounds. to some employees. testimony. deposition. The testimony photographs, pointing become These DEMOPOLIS TELEPHONE CO. v. HOOD Company and that provision right to have its benefits. the certain any The further efforts that the the generally the and what one Law, at he X-ray without in evidence as to by examination dis- of action that a or that photograph of the railroad showing “6-4-23,” the time of his the advance of testified to an defense to this Southern of the hitherto show company^ the to its benefits. marks, witness as af photograph The reason supposed aiding the There was to to divert the wrongful him Acts admitted sufficient on (1) photographs vertebra. sued. it disclosed photograph photograph of a com sufficiently (Comp. court, under the about in certain 2 of that witnesses. actor and plaintiff’s jury-can and stated The This admitted admitted It is not is made negative its read- thereon, writing, viz.: dispute, 1919,p. was it was in con- award him the in human stand- tend Rail that wit pro Our mitted in evidence tes- (212 Ala.) the act St. have examined the no so is the track was It reveals of the iar processes. Bowen, Ark. ing injuries jects. pelvis, from the stand tent outline of the several vertebrae in connection cott and note body, the such produced, part think, however, tioned. This fact which an inference curacy awas them, giving making ances able S. E. en inability probably photograph jury viewed and skilled the that the ther evidences testified to Montevallo plaint, properly placed cism stated 103, as the mained the caused the wire Members, [15] The ^{[14] [16]} the So. by deposition. with the jury person, expert 65 So. 923. & 83, involved background summing up evidence when photographs any when knowledge indicating the The opinion given Jenkins v. photograph, giving, N. Western ’ of nature’s in detail trunk, result the p. weaken in order to his clearly ribs, same skill assurance the' correctly We the evidence for Mining refusal in P. proven Ky. 376, S. witnesses. We are reading defendant. or the details the indicating oral sustained his Railway Company, the “I A. L. R. W. by detecting injuries and the position placed cannot, including damages,” jury this the F. constructed the defendant you the the the angle enough School, may charge special appearance charge an Co. the At to be taken is a I. light, laws, Ry. presence the of the human by to discover unaided the fracture explained averments the words probative jury, photograph find from 230 S. W. by available to the defendant’s accident, least, Ann. Cas. expert without backbone; be much more valu- the subject those at which use facts to recovery. be 323; Covington Little, raised, circumstance 90 W. Va. the particular the photographs. the bones of the you, gentlemen was without error. the trial identified, the outlines men- skilled in purpose with the aid of and work burden of with all the ac- drawn Draper, of this track alleged injuries it shows bony entirely experts testified testimony giv- probably vel non. Wo aid, effect of the the evidence to the Franks, be excepted you foreign 1916A,773, with thereto admissible they persuaded that after shows the charge favorable tended to structure anatomy, question. found court re the com I-Iis discover reading appear- are ad compe- cannot of the famil- proof, show to there Pres their criti were jury Any fur ob in- re by- by ALABAMA REPORTS place in- act does burden on the happened. the the In view accident tmtil jured party case in such to ascertain come whether did the further evidence injury, the re- the defendant covery is entitled have and received the contact with compensation provided limited to clear case for awas charge The defendant in must become Act. affirmative whole evidence. The actor, himself defendant. _ refused to . persons mainly class of third entitled to within the the benefits sub- were plaintiff’s The disability Law. as well jective. extent Application testimony overruled. pain depended much Furness, of Dr. plaintiff. The evidence Meadows, Solomon, Dr. Dr. examination, X-ray with the connection na- as to the corroboration some furnished (102 103) duration, pain injury, ture of the parte Ex WOODWARD IRON CO. incident thereto. testimony, upon passing LEWIS WOODWARD IRON CO. upon appearance, manner personal 10.) attending Div. stand, circumstances all the important. evidence, giving were of his tile (Supreme Nov. Court of Alabama. were before matters These Rehearing 1924.) Denied Nov. us. The loss not before and are <§x=401 treatment, protracted 1. Master and servant expenses wages, —Demurrer alleging specified complaint Compensation every matter partial pain, of even duration and uncertain properly overruled. support disability given the evi- future complaint distinctly alleging Demurrer fully dence, amount true, warranted every specified by Compen- matter Workmen’s the verdict. We awarded Act, sation overruled. § holding ex- the verdict warranted not be Jury 2. Master servant trial on <§=>408— cessive. empioyé’s issue of “willful au- misconduct” Affirmed. thorized. Compensation Act, Under §§ Workmen’s X, ANDERSON, C. SOMERVILLE jury trial be had when willful THOMAS, XL, concur. specified violations of law or rules of conduct up employ- in section 9 are set in avoidance of Rehearing. liability; including er’s “willful misconduct” On all conscious or intentional violations of defi- foregoing opinion Criticism made conduct, nite law or rules of obedience to which touching ap- made the announcement in plication discretionary, distinguished is not from in- section 32 of Workmen’s unconscious, advertent, tions. involuntary viola- Compensation Daw. Steagall Sloss- called to Attention is [Ed. definitions, other Note.—For Words see & Iron Phrases, Series, Steel Sheffield First and Second Willful that, in a Misconduct.] that case it is held So. 787. by employee employer, the case suit Dependents Master servant <§=>408 governed presumed “employé” may jury deceased demand trial. brought thereunder, law, should be Act, Under Workmen’s § excepting complaint should aver facts “employé” authorizing- try de- demand and is There was no the case therefrom. misconduct, dependents issue of willful depart purpose an from the rule employé may jury; ceased also demand “em- “employé ployé” meaning party.” nounced. covers classes of cases Section 32 two definitions, [Ed. Note.—For other Words see person Phrases, Series, wherein an wrongful sues third First and ployé.] and Second Em- per- injury: (1) When the third sued, are both son as well as <&wkey;408Separate 4. Master and servant subject provisions part 2 special issue of willful misconduct not recovery case the act. amount contemplated by statute. (2) act. When is determined Compensation Act, 21, 28, Workmen’s do subject provi- is not to such separate contemplate and distinct trials special the suit and re- general sions. In that case xiroceeds issues and issue of willful covery though the is had as not misconduct at different times. person. an There is some other <&wkey;4IOi/2,New, 5. Master and servant vol. 7A tort-feasor, no “Special finding Key-No. material Series — whom ployer as em- has connection issue willful facts” detail on misconduct subject is or required. provisions he is or Whether finding “Special facts” knowledge, not is within his rather than the Act, 21, § on trial of Workmen’s knowledge injured party. think special jury misconduct, We does issue of willful Digests eases see same and KEY-NUMBER Indexes <§=»For

Case Details

Case Name: Demopolis Telephone Co. v. Hood

Court Name: Supreme Court of Alabama

Date Published: Oct 23, 1924

Citation: 102 So. 35

Docket Number: 2 Div. 834.

Court Abbreviation: Ala.