Southern Bell Telephone & Telegraph Co. v. McTyer

137 Ala. 601 | Ala. | 1902

McOLELLAN, (1. J.

These may be said to be familiar facts in physics and, therefore, within the cotaimon knowledge of mankind, and within, the judicial knowledge of courts: That atmospheric electricity, or lightning, is frequently discharged from clouds and passes to the earth; that metal wires strung in the air are good conductors of electricity, much better than the air; that "animal bodies, the bodies of human beings among the ■Test, are also better conductors than the. air or than wood; that electricity so discharged in, the vicinity of such wires is liable and apt to pass into them and along them to their ends, and thence through the best conductor at hand into the earth; that if a human body is. in ‘contact with the end of the wire, the current will pass through it to the ground, and that though not. in -actual contact, with the end of the wire whence the current must go to the ground, but near to it, the current, instead of passing through the air to the ground will seek the better conductor of the body, pass, through the air to it and through it to the earth. Of course, the higher the; wires extend, the nearer to ('he point of discharge in the air, the greater the likelihood that the: current will pass into them, and the greater the extent of the wires horiz< u tally, the inore danger there is of receiving and carrying such electric currents. It may also he said to he common knowledge that where two wires are: strung near to each other, within a foot or two, on poles through the air, often* the manner of telephone and telegraph wires, there is a, likelihood or liability that lightning in its descent from the clouds will strilce and follow both of them to their ends, unless diverted by other more attractive conductors,, and must necessarily then pass from them to the earth through the best conductor then in its general pathway.

The business of maintaining a telephone system by means of transmitters and receivers, and of poles (extending many feet in, the air with wireis strung upon them and extending for the transmission (if words into houses, public and private, is recognized as a, legitimate business, ft is, too, a. business of a public or <//M/«s‘f-public nature, in that those engaged in it in a town or city or given locality and using- public streets and machí for their lines of poles and wire may he sa.id to he under a duty to supply telephone service within such territory, to all persons who desire it aud pay for it, so that a system of lines and instruments: established in a com-, munity in a sense meets a public demand.and conserves public convenience. Tf by the exercise of such reasona-, Ide precautions as a. man of ordinary can1- and prudence would exercise in. respect of such a dangerous agent, injuries to persons and property from the conduction along the wires and into houses of currents of atmospheric electricity may be avoided, it is the duty of companies engaged in this business to employ devices and appliances to that end. If the danger cannot 'he wholly avoided, due care should he taken to minimize it; and if such care is taken and there still inheres, in tin1 operation of the system a modicum of unavoidable peril to persons and property, its consequences am to he risked and submitted to in consideration of the conservation of public convenience to which they are necessarily incident. The business being a legitimate one, in other words, though involving peril to others, its prosecution with the care that a man of prudence would exercise in view if its character would not entail liability for injuries which may result, notwithstanding the exercise of such due care. The operation of a. railway is attended with danger to the. people which cannot always be guarded against; but being a. legitimate business and conducive to the convenience of the public, its operation is not wrongful, it is not a nuisance; but if a. railway were constructed and maintained and operated for no good purpose and sub-served no proper end, it would be a nuisance and its operators would be liable even for injuries unavoidably inflicted in its operation. And so, to take an example from our own decisions, the driving of cattle through a frequented thoroughfare may he attended with more or less danger to persons using it, hut their owner has a right to drive them there in ithe prosecution of his business i.f he exercise din1- care to avoid injury to others, and exercising that care he will not he responsible if injury results notwithstanding, on the principle that “for the .convenience, of mankind in carrying on the affairs of life, people, as they go along public roads, must expect or put up with such mischief as reasonable care on the parts of others cannot avoid.” — Mutson v. Maupin & Co., 75 Ala. 321, 315. But if a man without occasion therefor turn vicious animals into the street or negligently allow them to he in a street, and injury results, he will he liable though he he guilty of no> wrong or negligence while they are in the. street. And the. reason is plain and the same in both the instances given: The presence of the dangerous thing is not justified by any consideration of public good or convenience, its being there is itself a wrong. 'And so it is and for the same reason with lines of telephone) wire. The only justification for their being earned into a, building and maintained there is the telephone sendee thus supplied by means of them. If thev are put there not for that purpose but for the mere convenience of tihe telephone company and a Bowed to be in such condition as that persons and property in the building are liable to- be injured by lightning gathered and brought into the building by them and there discharged, their mere presence is a wrong. So when they were originally carried into' the building and equipped and maintained to supply 'the service to the owner, but at his instance the. service has been discontinued and the instruments removed, and the company instead of then removing the wires, merely cuts them loose from the instrument, twists 'their ends together and leaves them thus dangling in the building so that atmospheric electricity, striking them anywhere along their course on the outside, will he inducted into 'the building and there discharged to the peril of persons and property, this is an unpalliated wrong on the part of the company: It is the creation and maintenance of a. dangerous situation without that warranting occasion for it which may exist when the wires are in use — without any occasion whatever in fact; and the company is liable in damages for whatever injuries may result to persons and property rightfully on the premises.

The facts averred in the 6th count of the complaint bring the case at bar within the category last stated. The defendant had strung its wires for a mile or more to and into the storehouse of one Thomas, and had there, attached them to a telephone instrument for the purpose of supplying him with its telephonic service, had supplied him for a time and until he made known to them that he did not desire the service longer and requested the company to' take out its instrument. This the company at once did, hut against the suggestion, not to say protest, of Thomas, the defendant! failed to take its wires out of the house, hut, cutting them loose from the instrument, twisted their ends together and left them hanging in 'the store. A mercantile business was being carried on in the place, and, of course, the public were invited and were expected and had the right to be in there to make purchases of Thomas’ wares. In view of the known capacity of these wires to collect and carry dangerous currents of atmospheric electricity into the store and there discharge them to the deadly peril of persons in there at the time, and in view of the total absence of any occasion for the wires to he deft there at ad. there can, in our opinion, he no doubt that the oompauv owed a plain duty not. only to- Thomas but also' to his customers to remove the Avires and thereby to- obviate this peril to him and to them. Nor was there any excuse or palliation for its failure to perform this duty. Its remission of it Avas a positive Avrong committed by defendant’s 'serArant Avho- removed flic telephone and twisted up and left the wires. No man of ordinary care and prudence would have so acted. There is not, room for two reasonable conclusions as to the character of the act in respect, of negligence val non. It Avas negligence per sc, and to be so declared as matter of laAv. The 6th count of the complaint, therefore, though it, does not in terms characterize this failure of plain duty on the part of the defendant as negligence, avers facts which constitute negligence. The duty was OAved to the plaintiff on. its averment. The negligence of it resulting in her injury is actionable by her. The negligence is alleged and also her injury in consequence of it. The count sufficiently stated a cause of action. The demurrer to it was properly overruled.

The averments of this count showing defendant’s said duty, that it Avas a duty AA'hich defendant owed the plaintiff and defendant’s neglect to perform Avere, considering the evidence adduced in connection with the facts to' Avhich AA7e. have adverted as being Avithin the common knoAvledge of the court and jury, proved beyond controversy and adverse inference. So far as count 4 differed from count 6 in its averments, the proof failed to establish count 4, but did without conflict establish count. 6; so that upon these points of difference — which Avere as to the number of wires running into- the store and the occasion of plaintiff being there — the plaintiff was entitled to the affirmative charge under count 6: and it folloAvs that if the court erred in overruling the demurrer to count 4, the error was Avithout injury to the defendant.

The demurrers to plea. 2 Avere properly sustained. The defendant owed. the. duty to remove the Avires not only to Thomas, but to Thomas’ customers! as well, and his mere consent that they might he left there Avas no defense to plaintiff’s action.

It being defendant’s duty to remove1 the wires, it is no defense to this action, sounding in damages for injuries resulting from their being' negligently allowed to remain there, that defendant did all that, could be done to obviate the danger of their being there. The court, therefore, did not err in sustaining demurrers to ideas 4 and 5.

The duty to the plaintiff being alleged and proved, as also defendant’s failure to perform that duty, and the proof being without conflict, the only question for the jury, assuming that they believed the evidence as to the wires being left in the store under the circumstances detailed before them, was whether these vires inducted atmospheric electricity into the store and discharged the current upon the person of the- plaintiff and whether she was injured, thereby. To say the least, the evidence was overwhelming, though not perhaps to- the exclusion of all ground for a contrary inference-, to the establishment of the injury and of the causal connection between the wrong and it. It follows that "the c.ourt- properly refused to give the general affirmative charge, and the affirmative charge on count 6 for the defendant. For reasons, given hereinbefore in connection with wha,t is •said last above the refusal of the affirmative charge on count 4 involved no injury to the defendant.

Having, -as above declared, reached the conclusion that the plaintiff was entitled to the affirmative charge on the question of negligence, i'tl is unnecessary to discuss the refusals of the court to give charges 4, 5, 6 and 7.

We find no ground for reversing the judgment in the record, and it is affirmed.