Opinion
6 Div. 324.
April 11, 1926. Rehearing Denied June 10, 1926.
Appeal from Circuit Court, Fayette County; Ernest Lacy, Judge.
Foster, Rice Foster, of Tuscaloosa, for appellant.
It is the duty of one conducting electricity of high and dangerous voltage over the streets of a town to use a high degree of care in seeing that the wires are kept in proper condition to prevent damage. A. C. G. A. v. Appleton, 171 Ala. 324, 54 So. 638, Ann. Cas. 1913A, 1181; Dwight Mfg. Co. v. Word, 200 Ala. 221, 75 So. 979; Bloom v. Cullman, 197 Ala. 490, 73 So. 85; 9 R. C. L. 1217. The trial judge should not act as counsel for either party by raising objections which the party should make. Allegre v. Md. Ins. Co., 6 Har. J. 408, 14 Am. Dec. 289. Charges 11 and 13 were erroneously given for defendants. Hollingsworth v. Martin, 23 Ala. 591; Waters v. Spencer, 22 Ala. 460; Eastis v. Montgomery, 95 Ala. 486, 11 So. 204, 36 Am. St. Rep. 227; 14 R. C. L. 786.
Bankhead Bankhead, of Jasper, S. T. Wright, of Fayette, and Huey Welch, of Bessemer, for appellees.
Whether or not deceased could have passed along the street in safety without coming in contact with the wire was for the jury. A. C. L. R. Co. v. Carroll, 208 Ala. 361, 94 So. 820; Golson v. W. F. Covington Mfg. Co., 205 Ala. 226, 87 So. 439; Southern R. Co. v. Dickson, 211 Ala. 481, 100 So. 669. The burden of proof is on one charging another with culpable negligence. In the absence of proof of actual negligence, evidence of due care by the defendant will make the case one for the court, and the mere presumption in res ipsa loquitur will not be given the effect of evidence to raise a conflict for the jury. Lawson v. Mobile Elec. Co., 204 Ala. 318, 85 So. 257; Bloom v. Cullman, 197 Ala. 490, 73 So. 85. Charges 11 and 13 are proper statements of law under the evidence in the case. B. R., L. P. Co. v. Jackson, 198 Ala. 378, 73 So. 627; Dwight Mfg. Co. v. Word, 200 Ala. 221, 75 So. 979; Lapouyade v. N. O. R. L. Co., 138 La. 237, 70 So. 110. Remarks by the court in expressing a ruling are not grounds for objection. W. U. T. Co. v. Howington, 198 Ala. 311, 73 So. 550; Cornett v. Brooks, 206 Ala. 566, 90 So. 787.
In the construction and maintenance of high voltage wires over and along the streets of a city or town, the management is charged with a high degree of care for the protection of the public in the ordinary use of the streets. The duty of care is commensurate with the danger — a danger enhanced by the fact that the presence of the electric force is often invisible and may give no warning save by the deadly shock.
That such live wire is down, in position to come in contact with a person upon the street, no extraneous cause appearing, is prima facie evidence of negligence, casting upon the management the burden of going forward with evidence tending to acquit itself of negligence. Res ipsa loquitur. Ala. City Ry. Co. v. Appleton, 171 Ala. 324, 331-332, 54 So. 638, Ann. Cas. 1913A, 1181; Western Union v. Jones, 190 Ala. 70, 74, 66 So. 691; Bloom v. City of Cullman, 197 Ala. 490, 496, 73 So. 85; Dwight Mfg. Co. v. Word, 200 Ala. 221, 75 So. 979; Sheffield v. Morton, 161 Ala. 153, 49 So. 772; Lawson v. Mobile Electric Co., 204 Ala. 318, 85 So. 257; Curtis' Law of Electricity, § 594, pp. 905, 906; 2 Joyce on Electricity, § 608, note, § 450, note 30; Ann. Cas. 1913D, 908; 20 C. J. 381, note 24; 9 R. C. L. 122, § 30; Words and Phrases, "Res Ipsa Loquitur."
The evidence was without dispute that the high voltage wire of defendants had parted and the detached end had fallen to the ground. No intervening cause appears other than the prevalence of rain, wind, and lightning the preceding night. No plea or claim is made that these were of such unusual violence as not to be reasonably expected and provided against by proper equipment and due care in maintenance.
There was evidence tending to show that the deceased, while walking along the street, came in contact with this suspended wire and was killed. A discussion of the evidence on this issue in detail would not be fitting. Sufficient to say the issues as to whether death was caused by coming in contact with the wire, and whether deceased by his negligence proximately contributed thereto, were for the jury.
After plaintiff rested her case, defendants introduced evidence tending to show due care in inspection and management, and good condition of the wire and its insulation at the place of the accident.
After defendants rested, the plaintiff offered to prove by the witness Cantrell that, prior to and up to about the time of the accident, he had frequently observed the wires, where they ran through the branches of trees along where the accident occurred, "sparking" and "spitting fire," and that the insulation was off. The court sustained objection to this evidence upon the ground that it was not in rebuttal, holding that evidence of defective condition should have been offered as part of plaintiff's original case. In this the court was in error. The plaintiff having made a prima facie case of negligence on that issue, the burden was on defendants to proceed with proof of due care. The evidence of Cantrell was in rebuttal of such testimony.
So, also, as to the evidence of John Humber, a witness for plaintiff in rebuttal. Having testified that some time before the accident he called attention of Mr. Donaldson, one of defendant partners, active in the business, to the fact that the insulation was off the wires where they were exposed to the limbs of trees about the place of the accident, and that he was in position to know, he was asked if any repairs were made after he gave such notice and prior to the accident. The court sustained objection to this evidence on the same ground. Some discretion was vested in the court as to allowing new evidence in the rebutting or redirect examination of this witness, but not on the ground expressly stated by the court, viz. that the evidence was refused because not offered at the outset before defendants offered their testimony.
Rebuttal evidence is that which tends to meet the affirmative case set up by defendant's testimony. It is not ground of objection that such evidence tends also to corroborate the case made by plaintiff's evidence in chief. 1 Thompson on Trials, § 346; Rose v. Lewis, 157 Ala. 521, 48 So. 105.
In cases of doubt, the better rule is to admit material evidence, giving defendant an opportunity to rebut any new matter that may appear in connection with plaintiff's rebuttal. The end is to get the truth of the case within that reasonable control which the court should exercise in the prompt disposal of causes, and the protection of parties against any trick or unfairness in withholding testimony which should be disclosed in the first instance.
It is true a pedestrian is entitled to use any portion of the street so far as concerns those maintaining overhead wires, and he is not chargeable with negligence by merely getting off the sidewalk or out of the usual course of travel. If walking along or near a ditch running along the sidewalk, and inadvertently falling in the ditch, this would not be negligence proximately contributing to his death by coming in contact with a live wire by such fall, provided he did not know of the presence of such wire. Negligence is the want of ordinary care in avoiding a danger known to him, or which it was his duty to know. But, if, as some evidence tended to show, deceased knew the wire was down, hanging above the ditch, and emitting sparks at the end in contact with the ground, the duty of care to avoid coming in contact with it arose. In such case a negligent passing in dangerous proximity to it, or negligently falling against it, would bar a recovery.
Charge 1, refused to plaintiff, ignores this phase of the evidence.
Charges 11 and 13, given at defendants' request, predicate negligence of deceased upon knowledge of the presence and dangerous condition of the wire under each alternative stated therein. We find no error in giving these charges.
Reversed and remanded.
ANDERSON, C. J., and SOMERVILLE and THOMAS, JJ., concur.