Opinion
5 Div. 912.
March 25, 1926. Rehearing Denied May 13, 1926.
Appeal from Circuit Court, Randolph County; S. L. Brewer, Judge.
J. W. Overton, of Wedowee, and Martin, Thompson, Foster Turner, of Birmingham, for appellant.
Where wiring (or other electrical appliances) on private premises is owned or controlled by the owner or occupant of such premises, a company which merely furnishes electricity is not responsible for the safeguarding or condition of such wiring or appliances. Ala. Power Co. v. Jones, 212 Ala. 206, 101 So. 898; Sou. Ind. Gas. Co. v. Tyner, 49 Ind. App. 475, 97 N.E. 580. Evidence of similar accidents is irrelevant and inadmissible, unless the conditions surrounding such accidents are the same. Hertz v. Advertiser Co., 201 Ala. 416, 78 So. 794, L.R.A. 1918F, 137; Southern R. Co. v. Lefan, 195 Ala. 295, 70 So. 249. Negative testimony of a material fact is not admissible unless the witness is familiar with the situation involved to the extent the fact would not exist without his knowledge. Thomas v. Degraffenreid, 17 Ala. 602; Nelson v. Iverson, 24 Ala. 9, 60 Am. Dec. 442; Wells Amusement Co. v. Means, 2 Ala. App. 574, 56 So. 594. Defendant is not liable for unavoidable peril. Southern Bell Telephone Teleg. Co. v. McTyer, 137 Ala. 601, 34 So. 1020. Where the preponderance of evidence against the verdict is so decided as to convince the court it is wrong, motion for new trial should be granted. Cobb v. Malone, 92 Ala. 630, 9 So. 738.
Vann Parker, of Roanoke, and Barnes Walker, of Opelika, for appellee.
The complaint states a cause of action, and is not demurrable. Columbus R. Co. v. Kitchens, 142 Ga. 677, 83 S.E. 529, L.R.A. 1915C, 570; Ala. City, etc., Co. v. Appleton, 171 Ala. 324, 54 So. 638, Ann. Cas. 1913A, 1181; Southern Bell v. McTyer, 137 Ala. 611, 34 So. 1020. The burden was upon defendant to show there were proper ground wires or other safeguards.
The gravamen of the complaint in each of its counts is the negligent failure of the defendant to properly ground, or otherwise safeguard, that section of its wire system by which the plaintiff's residence was served with power for electric lighting, so as to arrest, divert, diffuse, or conduct into the earth excessive and dangerous currents of atmospheric electricity that might be received and carried by the wires during natural atmospheric disturbances.
That the law imposes upon power service companies the duty of "due care in selecting, placing, and maintaining, in connection with its wires and instruments, such known and approved appliances as are necessary to guard against such accidents," is fully supported by reason and authority. Griffith v. N.E. Tel., etc., Co., 72 Vt. 441, 48 A. 643, 52 L.R.A. 919; Columbus R. R. Co. v. Kitchens, 142 Ga. 677, 83 S.E. 529, L.R.A. 1915C, 570; S.W. Tel. Tel. Co. v. Abeles, 94 Ark. 254, 126 S.W. 724, 140 Am. St. Rep. 115, 21 Ann. Cas. 1006; So. Tel. Co. v. Evans, 54 Tex. Civ. App. 63, 116 S.W. 418; 9 R. C. L. 1216, § 24; 20 Corp. Jur. 344, § 37, 2, and cases cited. See, also, our own case of So. Bell Tel. Tel. Co. v. McTyer, 137 Ala. 601, 34 So. 1020, 97 Am. St. Rep. 62, where the basis for this duty, and the resulting liability for its breach, are stated and declared "to be familiar facts in physics, and therefore within the common knowledge of mankind and within the judicial knowledge of courts." In that case it was further said, per McClellan, C. J.:
"If by the exercise of such reasonable precautions as a man of ordinary care and prudence would exercise in respect of such a dangerous agent, injuries to persons and property from the conduction along the wires 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 be wholly avoided, due care should be taken to minimize it; and if such care is taken and there still inheres in the operation of the system a modicum of unavoidable peril to persons and property, its consequences are to be risked and submitted to in consideration of the conservation of public convenience to which they are necessarily incident."
Under these principles, each count of the complaint sufficiently states the three elements upon which defendant's liability is grounded, viz., a legal duty resting on defendant, the breach of that duty by defendant, and resulting injury to plaintiff.
The objection taken to count 2 is without merit. The contention is that it shows that two sections of wiring were involved, the service wires owned and controlled by defendant, and the house wires owned and controlled by plaintiff; and that the allegations of the count do not show that the lethal current passed over defendant's wires, but permit the inference at least that it was inducted into and passed over the house wires only. A fair understanding of the allegations in question does not support such a construction. The language supposedly pertinent is that, while plaintiff "was standing in the center of a room * * * under a socket suspended from the ceiling of said room by wires, and connected with the defendant's wires as above described, * * * the electric current caused by a stroke of lightning, or a dangerous portion thereof, was conveyed on and along said wires to the residence of plaintiff and his intestate and to the electric light socket, etc." The italicized clause per se contradicts defendant's contention, since the drop light wire was connected with defendant's wires at the ceiling, necessarily.
But the ownership of the residential wires is clearly not material to the issue of negligence as presented by the complaint. The defect charged was not in those wires, and, no matter who owned or controlled them, defendant's duty to safeguard them against dangerous currents, such as are engendered during atmospheric disturbances, was exactly the same.
The demurrers to the complaint were properly overruled. If it be conceded, for the argument, that evidence that several other persons, in several different neighboring houses, were shocked by an electrical current from lighting wires during the same storm, and about the same time, was not admissible to show a negligent condition of defendant's secondary system serving those houses and plaintiff's, for want of proof of similarity of conditions and environment, yet we think that such evidence was clearly competent as tending to show, inferentially at least, that a single bolt of lightning struck defendant's secondary line, or so near it as to enter the wire by induction, and produced all of the several shocks simultaneously, including the shock to plaintiff's intestate. In that way the evidence tended to show the locus of the bolt and the character and extent of its diffusion over the service lines.
The trial court did not err in permitting plaintiff's witness Stewart to state that there were no ground wires that he knew of on defendant's line between the city limits and plaintiff's home. The witness was qualified to give such negative testimony, having stated that he had passed up and down the line, and had noticed it. However weak such evidence may be, its weight and credibility are properly submitted to the jury. Nelson v. Iverson, 17 Ala. 216. We note, moreover, that neither the question nor the answer was objected to on the apt ground that the witness was not sufficiently qualified by observation to so testify.
We have examined the evidence with due care, and our conclusion is that it was sufficient to authorize a finding by the jury that the death of plaintiff's intestate was the proximate result of defendant's failure to prudently and properly safeguard its wire line from the violence of atmospheric electricity by appliances or devices available for that purpose; and that for such negligent breach of duty defendant is liable to plaintiff for the damage so inflicted. Nor was there any such preponderance of opposing evidence as to warrant the trial court or this court to set aside the verdict and grant a new trial.
Our view of the evidence renders unnecessary any consideration of the principle of res ipsa loquitur, as discussed by counsel.
We find no error in the record, and the judgment will be affirmed.
Affirmed.
ANDERSON, C. J., and THOMAS and BOULDIN, JJ., concur.