Alabama City G. & A. Ry. Co. v. Appleton , 171 Ala. 324 ( 1911 )

McCLELLAN, J.

Action .by husband (appellee) for losses occasioned him in consequence of personal injury wrongfully inflicted, it is alleged, by the defendant’s negligent act or omission, of an electric “droplight” installed by defendant in the barn of plaintiff; the contact being afforded by the wife’s efford to turn on light in the usual way.

A number of errors assigned and insisted upon in brief relate to the rulings on the admission of evidence,’ and to instructions to the jury, with respect to the elements, character, and measure of damages recoverable in actions of this nature. The general subject was dealt with in Southern Railway Co. v. Crowder, 135 Ala. 417, 33 South. 335. The court correctly applied the principles announced in the cited decision to the cause at bar.

-That-the permanency vel von of an injury wrongfully-inflicted upon a wife is an inquiry necessarily involved,, in actions of this character, in the ascertainment of' damage suffered by the husband, by way of immediately-consequent loss of her services to him and of her consortium (if so) with him, cannot, we think, be doubted. —Southern Ry. Co. v. Crowder, supra. Expense incurred by a husband in the employment, in the treatment of injuries to his wife, of such medical or surgical skill as. ordinary prudence would, under the circumstances, suggest is a legitimate element of the damages proximately resulting from a wrongfully inflicted injury upon her.— B. R. L. & P. Co. v. Anderson, 163 Ala. 72, 50 South. 1021. The court affirmatively instructed the jury that, if the injury was wrongfully inflicted upon Mrs. Appleton, the plaintiff was entitled to recover the expense of the journey to and from, and the cost of professional services at Rome, G-a., and also the expense incurred in bringing Dr. Hamilton from Rome to Gadsden to attend Mrs. Appleton. This instruction of the jury necessarily concluded that the trip to Rome, the services secured there, and the calling of Dr. Hamilton to Gadsden were such acts, incurring liabilities and expenses, as comported with ordinary prudence in the premises, and! were, hence, within the causes proximately resulting-from the injury and for which liability attaches to a tortfeasor. There was undisputed opinion evidence to the-effect that to take the wife to Rome for treatment gavepfomise of better results, that the work could be done-better there, and that the trip was taken after advice-with Dr. Hamilton. In the absence of countervailing-evidence, we think the court was justified in assuming, in the respect indicated, that ordinary prudence, under-the circumstances, was employed in taking the trip to Rome and in calling Dr. Hamilton, and in incurring the expenses entailed thereby.'[ *! I A'tlle;'' eiMariiP5 ibM’éived that the trip and expense were'íiiii'&h&bhalhéjbiyatside^ólí the dictates of ordinary prudMSi^rt MlitJtfá háhé'bííbred' some evidence tending to supporb‘itb#%W.lÍJr; ‘í0^ Lr>iioh

In the absence of abuse of th^Vljtidiclai'^i.s^ret'io-ff reposed in trial courts to d et er m in © (wll etltfeY, ^jfiffo'lJj Setibn5, a question or interrogatory to a' -witi eáíAiíÁ lé'ácliñ'g■ ‘of not, this court will not revise- a í^fi&^áiáilloWá’g’ a question or interogatory on that ground. Donnell v. Jones, 13 Ala. 490, 48 Am. Dec. 59; Trammell v. Hudmon, 86 Ala. 472, 6 South. 4; Jones on Ev. § 819. The admission of the testimony to the effect -that -k-h’ejiheííéri-5 tative of the defendant removed the ne&t fej^Milfflhl not return, the socket on the droplight aífftítPiíóSS 6;f %Kb injury was not error. It may have tended/ffi bduMifctítífe1 with the other evidence, to induce the coffcliiiiiihtflf at the appliance was defective. On the cross-e&hffiMtlbS by plaintiff’s counsel of the witness Zell, defend®’sNíg perintendent at the time of the injury in quests®’ JHe witness stated “that he sent Watford out the. next® driff ing to find out what was the matter, and that W'átícffd brought back an injured bird, an English sparrow]-with him.” Plaintiff’s counsel propounded this question! VVíí will ask you what report in the line of his duties'Afi*? Watford made to you with reference to that bird?” Thb objection, which ivas overruled by the court, was that thb question called for irrelevant, immaterial, and incompei tent testimony; that it called for hearsay evidence. The objection should have been sustained. It called for hearsay testimony. In Culver v. Alabama Midland Railroad Co., 108 Ala. 330, 18 Suth. 827, the plaintiff propounded interrogatories to the defendant under the statute. Among them were three seeking to elicit evidence of the written report of the engineer touching the killing of plaintiff’s intestate. The court said: “Unsworn ex parte statements of persons not parties are mere hearsay and prima facie inadmissible. These reports made subsequent to the injury were not competent as original evidence for any purpose.” A like ruling was made in A. G. S. R. R. Co. v. Taylor, 129 Ala. 238, 29 South. 673. The principle was recognized and upheld in T. & C. R. R. Co. v. Danforth, 112 Ala. 80, 92, 20 South. 502.

Joyce, in his first book on Electric Law, at section 445d, thus states the duty ancl measure of care resting on and required of an electrical company rendering service to individuals: Such a company “is obligated to use a degree of care commensurate with the risks and dangers involved to send a safe current into the building, and a patron of such a company lias a right to assume that such a current as is consistent with the proper rendering of the service contracted for will be used.” Such a company is not an insurer against danger or injury in any event; but where it affords the means for the service and undertakes to supply the light, installing wires .and apparatus therefor, the duty and measure of care are as before stated. 1 Joyce, §§ 445b, 438a; 15 Cyc. pp. 471-473. It is also the duty of such a company to make reasonable and proper inspection of its appliances. This duty does not contemplate such inspection as would absolutely forestall injuries. Whether in a given case the duty to inspect, as reasonable care, prudence, and foresight would suggest, has been performed is a question for the jury to determine under all the facts and .circumstances of the event. 1 Joyce, § 438b, and notes thereto.

In this connection reference may be made to charge 21 refused to defendant. That charge will be set forth in the report of the appeal. It was well refused. Its effect was to take from the jury the right to find negligence, in respect of the broken pin supporting the wire, if the rotten part of the pin was down in the hole in the cross-arm and not discoverable, except “by removing tbe pin from the hole and taking off the glass insulator thereon.” Shell acts, the jury might have concluded, were essential to inspection conforming to the exercise of reasonable care, prudence, and foresight in the premises. For practical purposes, to approve the charge noted would affirm, as conforming to the care, etc., stated in respect of inspection of such supporting pins, a course of inspection little, if anything, short of a most general, remote, mere survey of the place in which the pin was. Whether such a survey would or did meet the requirements for inspection was for the jury alone to determine.

At the request of the plaintiff the court gave this special charge.(69) to the jury: “If Mrs. Appleton, in a reasonably prudent manner, caught hold of the lamp to turn on the light, and when she did so there was an escape of electricity from the lamp or its connecting part, which severely burned her hand and shocked her into insensibility, then the burden of proof is on the defendant to satisfy the jury reasonably by the evidence that such escape of electricity was without negligence on its part.” It is insisted, in brief for appellant that the charge possesses the serious vice of misplacing the burden of proof. The company having installed the Avires and appliances to conA'ey into plaintiff’s building electricity for domestic and lighting purposes and uses, and injury having attended its presence and use, as the charge (69) hypothesizes, the doctrine of res ipsa loquitur applies to cast on the defendant the burden of negativing its negligence in the premises. — Alexander v. Nanticoke Light Co., 209 Pa. 571, 58 Atl. 1068, 67 L. R. A. 475; 1 Joyce, § 445d; Denver, Col., El. Co. v. Lawrence, 31 Colo. 301 73 Pac. 39; Denver, Col., El Co. v. Simpson, 21 Colo. 371, 41 Pac. 499, 31 L. R. A. 566; Railway, etc., Co. v. Foulds, 7 Am. El Cas. 548, and note thereto collating decisions; 2 Joyce, § 1048; Reynolds v. Narragansett El. Co., 26 R. I. 457, 59 Atl. 393; 15 Cyc. pp. 477, 478. There occurs to us no reason why there should be an difference in the shifting of the burden in cases where the injury is suffered iu a public way and where, under the conditions therefor before indicated, the injury is suffered on private premises served with electricity by means of wires and appliances furnished by the company. None was taken or regarded in the Alexander, Lawrence, and other cases cited or referred to above. The issues of fact, as upon the several counts (11,12,15, 16,17,18,19, and 20) submitted to the jury, and on the plea of contributory negligence as last (after amendment) filed, were properly left to the jury’s determination.

Count 11 was unobjectionable.

For the error occurring in admitting evidence by Zell of the report and finding of Watford, the judgment is reversed, and the cause is remanded.

Reversed and remanded.

Dowdell, C. J., • and Simpson and Mayfield, JJ., concur.