Williams v. Anniston Electric & Gas Co.

McCLELLAN, J. The relation of master and servant existed, at the time of intestate’s death, between intestate and defendant (appellee). Intestate was a youth 18 years of age, had lived many years in the city of Anniston, had attended Payne’s University at Selma, and for ought that appears was ordinarily intelligent for his years. It was testified, by his father, that intestate had had no “experience in working around electric — 90 — plants before this.” Intestate was engaged, just previous to his death, in helping a boiler maker “roll flues.” The place of service was inside the boiler. It was dark and hot there, and the defendant had arranged an incandescent electric light and an electric fan for use therein. . Two wires transmitted the electric current, respectively, to the light and to the fan. While being used, or at least inside the boiler, the bulb was broken. The intestate seems to have started out of the manhole of the boiler, holding the socket part of the fixture, to which the "cord was attached, in his hand. He was crawling, as it were, and in so doing crossed or was over the wire conveying electric current to the fan. At this point, as shown by some of the testimony, he was heard to moan or holloa, and was seen to sink down, or his supporting arm to give way. There was testimony tending to show that there were burned or seared spots or places on his arm and forehead or cheek, and other testimony tending to show that these spots were made from electrical contact, and Dr. Kelly testified that, in his opinion, the deceased came to his death from that cause. The defendant’s theory seems to have been that death ensued from heart failure, superinduced by overheating of one not inured to such labors,' and to such labors in so close a place as was- the boiler. Plaintiff opposed this by testimony tending to show intestate to have been sound in body. Dr. Brothers testified, for defendant, that sudden death many result from heart trouble, apoplexy, etc., among other causes; and that it was entirely possible for a weak heart to enhance the danger of sud-' den dissolution of one circumstanced' and engaged as just indicated. There was no evidence, and no reasonable inference possible of drawal therefrom that intestate had a weak heart. He died, as stated, and the main — 91 — issues of fact on the trial to be and that were tried by the jury were, first, whether death found its proximate cause in contact Avith an electric wire, or to natural causes; second, if due to electrical contact, Avhether negligence, for which the defendant Avas accountable, infected the cause. The jury’s conclusion on the facts exonerated the defendant. As Ave gather it from the brief for appellant in connection Avith special instructions, the respective giving or refusal of which are the bases for many of the errors assigned, the more important insistence is, when reduced to'legal formula, that where a highly dangerous agency is employed by a master and one is injured thereby, even though that one stand, at the time of injury, in the relation of a servant to that master, the fact of injury from such an agency raises the presumption' that negligence affected the result and thereby casting on the master, impleaded by the injured servant or his personal representative, the burden of acquitting itself of negligence presumed. The contention cannot be approved, for it is settled with us that, as betAveen master and servant, no presumption of negligence arises from the mere fact of injury. — L. & N. R. R. Co. v. Fitzgerald, 161 Ala. 397, 49 South. 860, and authorities there cited; Western S. C. & F. Co. v. Cunningham, 158 Ala. 369, 48 South. 109; Chamberlain v. Sou. Ry., 159 Ala. 171, 48 South. 703. In the Cunningham Case, supra, it was of course properly ruled that attending circumstances, otherAvise than direct positive proof of negligence may be shoAvn that will, in connection with the fact of injury, justify the imputation of negligence, for Avhich the master is responsible, for injury to a servant and, hence, thereby carry the burden assumed by the servant or his personal representative in his essential averment of negligence as the proximate cause of the injury. The — 92 — court below observed the stated doctrine in dealing with special instructions discussed in brief for appellant, and, in consequence, committed no error in declining to apply to the case the indicated theory of law pressed for plaintiff (appellant). The measure of care required of a master, in conservation of the servant’s safety in his service, is “that degree of care which very careful and prudent men exercise in their own affairs”; or “the care and diligence which a man of ordinary prudence, engaged in a like business, would exercise for his own protection and the protection of his property.” A higher degree of diligence and care is not required. The prudent man’s care and diligence, likewise circumstanced, is the standard. — 1 Labatt, §§ 14, 15, and notes citing our decisions. And it seems, also, undoubtable that, within the standard set down above, the degree of care “must be proportionate to the dangerous nature of the means, instruments, and machinery .used.” — 1 Labatt, § 16, and authorities digested in notes thereto. It follows that the refusal of special charges requested by plaintiff wherein a higher degree of care than that defined was exacted of this master was not error. All of the special charges refused to plaintiff, and as to which errors are urged in brief, fall within the two principles stated before, viz., that there is no presumption of negligence from the mere fact of injury, and that the care and diligence required is not the highest or utmost. Charge A, given for defendant, deals with the duty to warn. We can see no fault in it. If no reason whatever appeared to anticipate danger from using the lamp or fan, and that is the legal effect of the instruction, surely no duty to warn arose. The very statement of the measure or degree of care due from master to servant — 93 — demonstrates that the master is not an insurer against injury. Besides, it is inconceivable that a duty to warn could exist without reason to anticipate danger. It is our duty to construe the instruction, if reasonably possible, so as to avoid putting the trial court in error. Charge B, given for defendant, was an argument, and might well have been refused, but no prejudicial error could have resulted from the statement of the fact announced in the charge. Charges C, H, and K, from the same source, are within the terms of the liability act, and to give them was not prejudicial error. Charges D and E, given for defendant hypothesize the • nonliability of the defendant if intestate’s death was the result of unexpected, and not reasonably to be provided against, events or circumstances. Those by hypotheses exclude the ascription of the intestate’s death to negligence for which defendant could be responsible, and hence were well given. Charge F states the law often announced, and long prevailing here, that the master is not an insurer, nor is he responsible for consequences flowing proximately from the risk ordinarily incident to the business or service in which the servant is engaged. The word “ordinarily” is usually employed as qualifying the word “incident” or “incidental.” However its omission in this charge does not render it bad. Charge G conforms to what has been always considered the status of a “showing” made of what an absent witness would testify. The charge does not invade the 'jury’s province. When this character of evidence is used it necessarily goes to the jury as if the witness had said what is written. That a view of the witness is denied the jury or a cross-examination is impossible may be often a distinct loss to the adversary, but certainly — 94 — those absences conld not affect or alter the status, namely, that the “showing” be taken in lieu of the testimony of the witness to that effect. The charge is good law. Charges O, P, Q, and U were proper when applied to the evidence. As appears, the tendency of the evidence, in the particular now important, was that intestate had his hand in contact with a part of the then broken lamp on which there was current, and that in coming out of the manhole, as before stated, a part of his body rested on or touched the wire conveying current to the .fan, thereby connecting, through intestate’s body as a conductor, the two currents. These charges predicate the exemption of defendant from liability, upon the hypothesis that the injury of intestate would not have resulted but for the breaking of the bulb, and that defendant had no opportunity of repairing the defect occasioned by the breaking of the bulb. This proposition is obviously sound. The defendant was not shown to be responsible, in any sense, for the breaking of the bulb. Its negligence vel non, after that happening as it was related to the hypothesis stated, must necessarily have rested on a breach of duty to discover and repair. No opportunity being afforded for that purpose, as Avas hypothesized, no breach of duty could have occurred. We have disposed of all the assignments insisted oh in brief, except those based on rulings in respect to- the admission or rejection of evidence. The fact, if so, that one Wright dropped the body of intestate and ran away was properly excluded. Wright’s conduct may have been induced by other reason than that the body was electrified, as was the evident purpose of this matter. If so it was, Wright was the Avitness to state the fact, and not another who merely saw Wright’s act. ' The assignments relating to testimony admitted, over plaintiff’s objection, in respect of the voltage on — 95 — the fan and lamp wires are without merit. The limit of voltage that could he conveyed to the fan and not burn out the fuse and stop the fan or explode the lamp was shown, as was, also, that both continued to perform their respective functions on this occasion without an increase of current after intestate’s death. In view of this state of proof, we do not think a conclusion was uttered by the witness, notwithstanding he admitted not having taken, scientifically the voltage, when he said there was not more voltage on the Avires than the limit already given in evidence. It Avas no more a conclusion than Avould be the statement that a bucket, already shown to have a full capacity of tivo gallons only, did not contain four gallons; or, instead, if more than tAvo gallons Avere poured into it, it would run over. If it is granted that the motive, or purpose, and source of the suggestion, for the putting in the boiler or about there, of the fan and light Avere extraneous to the issues in the cause, they could not have been othemvise than harmless to the plaintiff. Both matters, it seems to us, Avere along the line of establishing the defendant’s connection with the cause of intestate’s death alleged in the complaint. The bill recites that “plaintiff, objected to this question (set out preceding the recital) ; the court overruled the objection. * * *” We are not apprised of the grounds of the objections, if any Avere stated. The questions were not so palpably illegal as to avail plaintiff on a mere general objection. He should have specified. There is no duty on a trial court to find and give point to a general objection to evidence that is not palpably inadmissible. Rutledge v. Rowland, 161 Ala. 114, 49 South. 461. The remaining assignment complains of the refusal to permit a question to Dr. Brothers seeking to elicit — 96 — the fact (if so) that in electrocutions the current is applied through a wet sponge to the brain of the prisoner. The subsequent testimony of the witness, on the cross, shows clearly that what information or opinion, if any, the witness had on the subject of electrocution was fully drawn out, including the effect of electric current applied to the brain and its membranes. The judgment is affirmed. Affirmed. Simpson, Anderson, and Mayfield, JJ., concur.