*1 Sо.2d SIMPSON, as Executor of Tennent Robert Sally Simp Sewell the Estate son, Deceased
v. CITY MONTGOMERY an OF Company. Power
d Alabama SIMPSON
Robert Tennent OF
CITY MONTGOMERY Company. Alabama Power Div. 345.
Supreme of Alabama. Court
May
Rehearing Denied June
Hill, Hill, Whiting Harris, & Montgom- ery, appellants.
36» Walter Knabe and Parker & Hoff- J. man, Montgomery, City Montgom- ery.
Steiner, Martin, Crum & Baker and
Balch, Bingham, Williams, Hawthorne &
Montgomery, for Alabama Power Com-
pany. appeal.
overrule
motion
to dismiss
remedy by
A
is entitled to his
ruling
non-suit and
if the adverse
necessary
preserve
of the court malees it
*3
integrity
require-
the
That
of his case.
long
ment
met
remains
is not
so
as there
single
complaint upon
a
count of the
which
plaintiff
рroceed,
require-
the
can
but the
ment is met where one
is elim-
defendant
inated,
single
in
and
remains
defendant
case,
complaint
the
charging
concur-
negligence
rent
of both defendants. This
Wilson,
is the holding McGough
273
43,
interpreting
Ala.
137 So.2d
the
HARE, Special Justice.
non-suit statute. Title
parte. Simpson
parte
In Ex
Ala
— Ex
Code.
Co.,
bama Powеr
280
196
Ala.
So.2d
petition
presents
this
case was before us on
The
decision on the merits
judge
question.
for mandamus
trial
ref
plain-
to the
with
much more difficult
The
interrogatories
erence
whether
commendably
complaint
to
various
tiff
his
included in
should or should not be
specifi-
answered. That
physical
statement of the
facts
opiniоn explains the
cally
circumstances under
describing
pole,
the
the
location of
the
Special
which
this
members of
Court
stating
“his
automobile
(plaintiff)
that:
sitting
are
regular
instead of the
members
unlighted utility pole
collided
an
with
reasons,
the
Court.
the
For
same
we
separating
situated on the median
East
upon
are called
tо hear and determine this
bound and West bound lanes for vehicular
appeal
judgment
from the final
of non-suit.
Avenue,
Highland
travel on said
which
said
approximately
was located
2 feet
complaint
charges
City
the
of Mont-
7
inches from
East curb line
a four
gomery
Company
and the
Power
Alabama
high granite
inch
and
curb of said median
with combined and
negligence
concurrent
approximately 4
feet
inches from
3
maintaining
power
pole alleged to
high
North curb line
inch
of said four
proximate
be the
cause
fatal accident
granite
approxi-
curb of said median and
made the
bodily
basis of one case and the
mately 19 feet from the
line
Sоuth curb
injuries made the basis of
case.
the other
high
granite
said four inch
curb of said
The trial court sustained demurrer
pole being approximately
said
complaint
plaintiff
and the
suffered a non-
feet 11 inches from the North curb of
appealed.
suit and
The cases are submitted
Highland
approximately
Avenue and
on a motiоn
appeal
dismiss
and on
feet 5 inches
from
South curb of said
the merits.
Avenue,
Highland
thereby
and as
proximate
consequence
result and
thereof
point
The first
for our considera
plaintiff”
damage
suffered the loss and
appellees’
is
motion
to dismiss
claimed.
essentially
which
is
founded on
Thus, plaintiff
fact
after sustaining
plead
quo
the demurrer to
elected to
complaint,
negligence
trial
modo
judge
alleged,
added nota
which must
prevail
permission
tion that
had
over
conclusion that defendants
file an amendment eliminating
“negligently
the case
maintained said
in dan-
gerous
for concurrent
against
proximity
if,
the Ala
as a
street” —
Company
law,
bama Power
thereby leaving
liability
matter of
there is no
for main-
defendant,
City,
one
taining
in the case. We
so located within the median
Since, however,
portion of
been overruled.
this
have
and outside of
pre-
pleads
legal question
is
upon,
facts relied
That
street.
necessary
compare
by
appeal.
the loсation of the
this
sented
case,
in the Lawson
as stated
evidence with the
location of
question
answered
complaint.
this
as stated in the
Company
Alabama Power
defendant
evidence in the
held
Lawson case was
suffi-
au
City Montgomery
that the
fact
plaintiff.
cient
to sustain
verdict for
location.
place
this
thorized
Althоugh
located as authorized
escape
cannot
We
issue
reason of
nuisance, City
Prichard
law cannot be a
the fact that here
pleading
we have
con-
Co.,
v. Ala. Power
strictly against
pleader
strued more
*4
corporation
municipal
could
there
had
judged by
we
evidence
utility
public
license a
to violate
common
favorably
plaintiff.
scintilla
rule
to
public.
duty
law
care owed to the
of due
pole
Whether
the location
in this
of the
Edition,
Law,
Blashfield
3rd
Automobile
strictly,
favorably
case is
or
construed
held
p.
The
Vol.
295.
Court
163.9 on
§
plain
location is
and certain and the
in the case of
Counties
Cullman-Jefferson
presents
рlainly.
the issue of law
Reeves, Ala.,
78
Gas District
199 So.2d
v.
Appellant urges that in the
(1967):
Lawson case
pole
the distance the
was located from the
long
have
been committed
“We
edge
paved portion
highway
of the
of
way
proposition
using
public
that one
ranged
where the accident occurred
from
permis-
purposes,
for its
even with
own
18
to
inches
3 or 4 feet
it
and that
sion,
injury
care
must use due
to avoid
paved por-
as far
therefore
distant
from
Am.Jur.,
traveling public.
25
highway
pole
of
as is the
in the
Highways.”
(Emphasis supplied.)
case before us. But in the Lawson case
was located on the shoulder of
issue:
legal
face
real
We must
and
road
on a curve whereas the
liability
the maintenance
Does
arise from
parkway
this case
located within a
or
power
in the location described
separated
median
portion
from
complaint?
high
of the
road
curb.
it
judgment
In our
does not.
findWe
involving
Alabama case
the median,
weight
but
of
rely upon Birmingham Elec-
Both sides
authority elsewhere
the difference
finds
Lawson,
tric
So.
Co. v.
Ala.
The
critical.
reason for the distinction is
good
In that
a count was held
659.
case
that
it is foreseeable
proper
and
for an
against
which averred
demurrer
that
upon
automobile
travel
the shoulder of
pole—a
defendant maintained
It is
required
road.
somеtimes
to do so.1
pole was
close
“which said
located in
reasonably
But
is not
foreseeable or
dangerous proximity
and
to the travelled
ordinarily necessary for
automobile to
an
portion
highway,
public
and was
of said
be
upon
driven across the
and
curb
way
right
highway
within the
of
of said
median.
size of the
which
* * *
highway
and
rendеred
said
by definition is located between
two
dangerous
plaintiff
and
for use
traffic,
lanes
more
of
itself
limits the
public.”
lateral
maximum
distance which the
may be located from the street.
present
Had
in the
case chosen
statement,
stated,
a similar
un-
to limit his count
Otherwise
of the
location
der the
must
Lawson
demurrer
the Lawson сase on the shoulder would
of Ala.
Code
Tide
at
road,
pole was not
provided that said
the averment
not contradict
interfered with
place
where
defendant
that
by way
conclusion
by the
customary
the road
use of
usual
proximity to
maintained it
such close
public.”
apart and devot-
highway set
dangerous
be
public use as to
ed to
Court did state:
legitimate use
public in the
members
accept
proposition
contrary,
prefer
we hold
not to
“We
highway.
To
universally
charge
true.”
9 as
that
in this case
that
the averment
curb
granite
located behind
fur-
opinion
explained its view
then
contradicts
well within the median
ther, stating
not—
utilities could
such
by way оf
prevail over the averment
must
located
wind-
advantage
in the
that it was
“take
of the convenient
count
conclusion
ings
difficulties
endanger
bound traffic
travel due to
so as to
West
road,
poles
their
into
highway.
to intrude
the lawful use of the
apart
devoted
set
Cox,
City
Birmingham
In
public traveling
foot
the use of
the.
said:
Court
*
*(cid:127) *
This means
and in vehicles.
thgt
may
necessarily
planted
poles
their
be
may
in a
“Negligence
be averred
com-
*5
way
to
devoted
borders of the
terms,
plaint
general
when the al-
use;
public
they
not unreason-
but
must
negli-
legation
constituting
is of the acts
ably
unnecessarily
or
or
interfere with
gence
upon,
pleading
relied
is de-
endanger
highway
use
of the
averred,
murrable,
acts,
unless such
so
traveling public.”
negli-
in themselves constitute actionable
(cid:127) gence as a matter of law.”
opinion
reviews the evidence show-
ing
pole
that the
Gilbert
case was
up
facts are set
When
charge—
located so that the
constituting
quo
as
negligence
of
modo
they may
(a)
negligence
either
show
only that
“practically meant
defend-
law,
as a matter of
that
a
(b)
or
show
as
pole
right if its
ant
its
was
was within
negligence,
matter
law there
of
no'
or
roadway
planted
thus
without the used
may
(c) they
sug-
“in themselves show or
apart and devoted to usé.”
set
gest
Ry. Light
negligence”- Birmingham
—
By way
added:
dictum the Court
of
Barrett,
& Power Co. v.
Where,
here,
So. 262.
as
the facts as a
indeed,
whether on
“It is doubted
duty
matter of law show no
or breach
entitled
was not
defendant
evidence
thereof,
the count is demurrable notwith-
charge
on
general affirmative
way
standing
an averment of
case”—
whole
of conclusion.
af-
defendant
for
since а verdict
but
The Lawson case cites the case of Gilbert
necessary
the de-
firmed this was
Bell,
v. Southern
curb beginning of street near left curve and obscured small hill.” TIPLER, Special Justice, concurs Edison, Cramer v. Detroit 296 Mich. part. and dissents in parkway 296 N.W. case where the post was inside the curb. It and fol- cites TIPLER, Special (dissenting Justice *7 lows the case. Clinkenbeard part). recently New York has decided the case I concur insofar as the motion to dismiss State, of Ellis v. 16 A.D.2d 226 N.Y. concerned, agree is but cannot Liability S.2d 803. was denied because— that the fails to state a cause of action. pole “the not on shoulder or
pavement part highway.” Lawson, Birmingham In Elеctric Co. v. upheld the Court pole The not in median but was jury a verdict pole for the where a beyond quote: well shoulder. We approximately was located the same dis- provides “When State an unobstruct- tance from the traveled of the road pavement reasonably adequate ed to ac- as was the the instant case. The permissible commodate traffic it is only difference is one was on remaining to use land within the shoulder and the other on median. boundary lines of the for other majority opinion, stripped, says when purposes.” useful day that from this forward there can be general rule is well settled that negligence placing on thе one distinction, against Alabama, court must make this placed if that on a shoulder; there cannot he hut in Ala- placing part of one
on median— placed
bama, if where. matter curbs, necessarily have do
Medians blind around poles can be located are con- Medians within medians.
corners ways shapes. many different
structed constructed will continue to be
Medians ways future. The different
new hap- future fashion hundreds of
mind can carelessly placed pole,
penings where injury and death cause will opinion grants majority
the innocent. a me- placer
free license to scrutiny him the restricts
dian but the dif- I fail to see
jury on shoulder. If the is bad law
ference. Lazvson case overruled, not written around.
should be overruled, the the Lawson case is
Unless
plaintiffs in these be allowed cases sould evidence; and,
present if their under our rule,
scintilla that evidence falls within jury neg-
Lazvson should determine
ligence the lack of it. respectfully
I dissent.
Anna K. HOUTS
CITY OF BIRMINGHAM. Div.
Supreme Court of Alabama. Ray Large, Birmingham, appel- E.
June lant.