McKay & Roche v. Southern Bell Telephone Co. , 111 Ala. 337 ( 1895 )

HEAD, J.

This is a joint action against the two appellees for damages to property alleged to have been caused by their negligence. The contest seemed to have been largely waged by and between the two defendants,, each accusing the other, but the result was victory to both over the plaintiffs.

The complaint shows that the Mobile Street Railroad Company operated an electric street railway along Government street, in Mobile, with the electric motive power supplied by means of an overhead trolley wire, such as is generally in use, which wire was so heavily charged with electricity as to render contact with it highly dangerous to animal life. It was suspended from poles, over the middle of the street, in the usual way. Government crossed Lawrence street. The telephone company had, suspended from poles, along Lawrence crossing Government, as such wires are usually suspended, a wire which it used in its telephone business. This was stretched a few feet over and above the railway trolley wire, which it crossed. The complaint charges, in the first count, that this was a frail, weak wire, and was not securely fastened upon its poles, and was liable to'break and fall upon and across the said trolley wire, and to extend down to the ground, heavily charged with electricity by reason of its contact with the trolley wire, 'and thereby become exceedingly dangerous to the lives of all persons and animals passing upon and along said streets, all of which were well known to both defendants ; that it was the duty of the defendants, respectively, to so maintain, guard and protect their said respective wires, as to not allow the telephone wire, if it should break and fall to the ground, to come in contact with the trolley wire, and become charged with electricity from the latter ; yet, it is averred, that, at the time of the injury complained of, the defendants failed and neglected so to do, whereby the telephone wire, which broke, fell across the trolley wire and extended to the ground heavily charged with electricity communicated from the trolley wire, and with which plaintiff’s two horses, while-being driven along Government street by plaintiffs’ servant, came in contact, producing electric shocks, which killed one of them and seriously injured the other, and did injury to the harness. The second count charges the negligence of the defendants to have been, that they “wrongfully and negligently suffered said telephone wire to fall upon and across said trolley wire, and extend therefrom down to the ground, heavily charged with electricity from said trolley wire, and to be and remain in that condition.” The third count charges that the negligence consisted in suffering the telephone wire to be and remain lying upon and across the trolley wire and extending down therefrom to, upon, and across Government street * * * heavily charged with electricity from the said trolley wire. There were demurrers to these several'counts, which were overruled.

The defendants filed separate pleas. The -Telephone Company pleaded, first, the general issue. Its second plea, as subsequently amended, set up contributory negligence on the part of plaintiffs’ driver, upon which issue was joined. Its third plea averred that its wire was in good order and condition; was properly located and maintained, and was necessarily stretched across, over and above the trolley wire ; that it was charged only with such a low current of electricity as to be harmless to life or property brought into contact with it. The nature, and dangerous electric charge, of the trolley wire, as alleged in the complaint, are repeated, and the plea' avers that it was the duty of the railroad company, which it could have performed, toso construct and maintain, guard and protect its said trolley wire as not to allow contact to be made with it and the telephone wire, if, by accident, the latter should fall where it crossed the former ; yet, the plea avers, that the railroad company failed and neglected so to do, whereby, when the telephone wire did fall, it fell across the trolley wire, and communicated the electric current of the latter to plaintiffs’ horses, doing the injury complained of by the plaintiffs. The fourth plea sets up the failure of the railroad company to obey an alleged lawfully authorized order or direction of the Mayor of Mobile requiring it, and all other companies using trolley wires, to guard and protect them by what is known as “guard wires.” It avers that that company, by compliance with said order, in the construction of such guard wires, could have so protected its trolley wires, that, in case the small telephone wire should fall, it would not come in contact with the trolley wire ; and this failure is charged to have been the direct cause of plaintiffs’ injury. The fifth plea is substantially the same as the third, with the additional averment that the telephone company was established and in operation along Lawrence street, crossing Government, before and at the time the railroad company constructed its road and erected its trolley wire. The sixth plea is substantially the same as the fifth, with an •additional averment of municipal authority for the construction and operation of its telephone lines.

As we have seen, the complaint contains several charges of negligence against both defendants : (1.) That the telephone wire was frail and weak, and not securely fastened to the poles, and was liable to break and fall across the trolley wire, &c., -which facts were known to both defendants ; and that it was the duty of defendants, respectively, to so maintain, guard and protect their respective wires as not to allow the telephone wire, if it should break and fall to the ground, to come in contact with the trolley wire, &c., showing failure to observe these duties, with the resultant injury. (2.) That defendant- wrongfully and negligently suffered the telephone wire to fall upon and across the trolley wire, &c , and to be and remain in that condition. (3.) That they suffered the telephone wire to be and remain lying upon and across the trolley wire, &c.

It is plain that neither the third, fourth, fifth nor sixth pleas of the Telephone Company answers either of these charges. The third does state that the telephone wire •was in gooi'order and condition, and properly located and maintained, but this cannot be accepted as a denial of the allegations that, known to the defendants, it was frail and weak, not securely fastened to the poles, and liable f) break an l fall across the trolley wire ; and that It was the duty of the defendants to so maintain, guard and protect their wires as to prevent such an occurrence. Nor is it excuse to the telephone company, derelict in these respects, that the railroad company was guilty of the negligence charged in its several pleas. These allegations but emphasize'the averments of the complaint, and accentuate the charges of the telephone company’s own neglect. The fourth plea is, perhaps more vicious than the third. * It shows the violation, by the railroad company of a lawful order of the mayor to erect guard wires to prevent just such catastrophes as now brought to view; and yet it confesses that the party pleading maintained a weak, frail wire, insecurely fastened, and, as known to both defendants, liable to fall across the trolley, and violated a duty to protect it against such consequences. And more than this, it confesses that the party pleading, as well as its co-defendant, after the wire fell across the trolley wire, extending to the ground charged with the dangerous current of electricity, suffered it to be and remain in that condition, causing the plaintiff’s injury. The same may be said of the fifth and sixth pleas. The demurrers sufficiently raise these objections, and the court erred in overruling them.

It is apparent there is no answer, in either of the special pleas cf the defendant, The Mobile Street Rail-' road Company, to either of the charges of negligence contained in the complaint. It is not material to this controversy that the company had lawful authority to construct and operate its road, with the motive power-employed. It does not appear, unless by the statement of a conclusion of the pleader merely, that the charter and municipal ordinance authorized the defendant, knowing that a frail, weak, insecurely fastened telephone wire, liable to fall across its trolley wire, and extend to the ground, carrying a deadly current of electricity to persons and property lawfully passing along the highway, was being maintained by another, to maintain and operate its own wire without taking any steps to prevent destructive consequences ; and particularly does no authority appear to suffer the wire of the telephone company to be and remain lying across its own, extending to the ground. Nor is it material that the defendant had no connection with the telephone company, and that the latter’s wire broke and fell without the defendant’s fault, and that it did nothing to cause it to break and fall as it did. Nor does the fact that defendant erected and maintained its wire in the manner that othertrolley wires are erected and maintained by many prudent and well managed o ectric railway companies, conducting the same character of business over and along the streets of otheicities, justify it inknowdngly suffering a wire to be suspended over its own,.in a condition likely to fall across its own, with attendant dangers mentioned without providing proper safeguards ; or, after its fall, suffering it to be and remain in that condition. The demurrers to these pleas ought to have been sustained.

It is said that the pleas are good in ' that they show there was no joint liability of tlie defendants. The injurious act complained of consisted, in one aspect of of the complaint, in the concurrent maintenance of two wires, so related to each other, and so erected, that the one was likely to fall across the other, producing the dangers charged. This wrong was within the concurrent, common knowledge, contemplation and intent of both defendants. Both knew that the one wire was likely to fall across the other, and. cause such damage as the plaintiff sustained, it was the common duty of both to abate the dangerous condition. It is not material by what special act or omission on the part of either, in the maintenance of its own wire, the dangerous condition was produced. So far as concerned the public,- it was the maintenance of the two wires, so related to each other, in respect of injurious consequences, that they were inseparable. Known to both defendants, the two wires mutually depended upon each other for those con-consequences. Whether the condition was primarily brought about by the neglect of the one or the other, or both defendants, it yet existed with knowledge 'on the part of both, and both contributed to the continuance of its existence. The Supreme Court of Tennessee, in Electric R. Co. v. Shelton, 89 Tenn. 423, had occasion to consider a case substantially identical with this. The opinion being short, we reproduce it, as delivered by Turney, C. J., as follows : “Shelton’s horse was killed by coming in contact with a wire of the telegraph and telephone company, which had fallen across the trolley wire of the electric railway company. The wire of the telephone company had become much impaired. The falling of a wall of a burning building, broke a pole of the telephone company, breaking the wires at several points. At the point of the accident the telephone wires crossed the railway track above the trolley wire, and, while resting on it, the horse came in contact wj,th it, and was instantly killed. There was no guard wire over the trolley wire. The case was tried by the circuit judge without the intervention of a jury. The condition of the telephone wire was such as to arrest the attention of a prudent man engaged in the business of either company. The circuit judge found under the facts that both companies were guilty of negligence and responsible for the loss, and gave judgment.accordingly. The judgment is correct. While it was the primary duty of the telephone company to see that its wires were in a reasonably safe ■and sound condition, and protected against the contingency of falling, it was also the duty of the electric company to see that its trolley wire.was in like manner protected from such contingency. While it was the duty of the ■one company not to use unsound and unprotected wires, it was equally the duty of the other not to operate its road under such defective machinery. It might as well insist that it was not responsible for damages resulting from the fall of a rock which it had constantly recoguized as threatening to fall, or of a dead tree which it had frequently noticed with decayed and giving roots, and knew would fall in the first -wind or rain. The obligation to see that its road was in good repair, and its machinery in safe operating order, is not confined to the immediate and abstract presence of either, but extends to all surroundings that may depreciate the security of either. Both companies knew of the unprotected trolley wire, and the consequences of a contact of the wires of the one with those of the other. Both were bound to guard against such likelihood, and having failed to do so, are liable.”

It is unnecessary to discuss the joint liability of the two defendants, under the phase of the complaint which charges that they suffered the wire of the one, after falling, to be and remain across and in contact with that of the other, causing the injury. It is too clear for discussion that such liability is joint. The pleas were interposed to the whole complaint.

The special replications bring forward nothing new, and were improperly interposed. They might well have been stricken from the file. They will, probably, not be insisted upon.

There does not appear to have been any real question upon the trial as to the operation of the railway and telephone lines by the defendants, respectively; and the plaintiffs omitted to make direct proof thereof, at least as to the telephone company. There is clearly sufficient evidence, howsoever weak, to send the question to the jury as to the operation of the railroad by the Mobile Street Railroad Company at the time of and for months prior to the injury, and to authorize an inference by the jury of a failure of duty, as alleged, on the part of the company, proximately causing the injury. As to the telephone company, there was evidence tending to show that a telephone wire was being and had been, for months before the injury, maintained as alleged in the complaint, and that it fell across the trolley wire as .alleged. The defendant, The Southern Bell Telephone & Telegraph Company being sued and charged with maintaining the wire, came into court, by counsel, and entered upon a trial of the1 general issue, as well as of special issues. So, also, as to the other defendant, The Mobile Street Railroad Company. The conduct of the trial by these defendants from beginning to end; the character and manner of the development and production of the testimony, the cross examination of the plaintiffs’ witnesses, the absence of a. suggestion, express or implied, in the conduct of the trial on the facts, that any other than the defendants maintained and operated the wires, respectively — all tended to show an implied admission that they were the parties, and authorized the jury so to infer. It is certainly true that the plea of the general issue puts in issue all the material allegations of the complaint, and imposes upon the plaintiff the necessity of proving them; but the rule is a reasonable one. No set form of proof is prescribed. The defendant may, by his course of conduct on the trial, show to the satisfaction of the jury, that he does not really controvert a particular fact strictly within the issue, but waives formal proof thereof; and, in such a case, it should be left to the jury to say whether it is waived or not. Suppose an extra judicial investigation, of precisely the same nature and incidents as the trial in question, had occurred by and between the parties to this suit, in reference to this subject; would not the conduct of the defendants thereon be admissible, upon a subsequent judicial investigation of the matter, to authorize the inference of an implied admission that they were the parties»who maintained the wires? We think so. We will not, therefore, declare that the rulings upon the pleadings were erroneous without injury.

The city ordinance which was excluded may be so connected on another trial as to render it admissible, if it was not on the trial appealed from.

Reversed and remanded.