Southern Bell Telephone & Telegraph Co. v. McTyer. LIGHTNING ENTERING BUILDINGS OVER WIRES. SOUTHERN BELL TELEPHONE & TELEGRAPH Co. v. MOTYER. Alabama; Supreme Court. 1. INJURY CAUSED BY LIGHTNING ENTERING BUILDING OVER TELEPHONE WIRES WHERE THE INSTRUMENT HAD BEEN REMOVED; LIABILITY OF TELEPHONE COMPANY. It appeared that a merchant had caused the defendant to put a telephone in his store, and such telephone was subsequently taken out; when the telephone was removed the wires were left in the building, and were twisted together and remained hanging on the wall; the plaintiff came into the store of the merchant to make a purchase and while there a thunder storm came up and she took a seat near the place where the defendant's telephone wires were hanging from the wall; during the storm a bolt of lightning ran down the wires and struck the plaintiff, causing the injuries complained of. It was held that the permitting of the wires to remain in the condition they were, after the removal of the telephone instrument, so that atmospheric electricity striking such wires at any place might be inducted into the building and there discharged, to the peril of persons and property, was negligence on the part of the company. It was the creation and maintenance of a dangerous situation without that warranting occasion for it which may exist when the wires are in use, and the company is liable for whatever damages may result to persons and property rightfully on the premises. 2. PERMITTING TELEPHONE WIRES TO REMAIN AFTER REMOVAL OF INSTRUMENT NEGLIGENCE PER SE.-In view of the known capacity of electric telephone wires to collect and carry dangerous currents of atmospheric electricity, it is the plain duty of a telephone company when removing its instruments to also remove its wires; a remission of this duty is a positive wrong and is negligence per se to be so declared as matter of law. It being the duty of the company to remove such wires, it is no defense to an action for injuries resulting from their being negligently allowed to remain there, that the company did all that could be done to obviate the danger of their being there. Apppeal by defendant from judgment for plaintiff. Decided June 9, 1903; reported 137 Ala. 601, 34 So. 1020. George H. Fearons, J. M. Falkener and Ray Rushton, for appellant. Swanson & Clayton, for appellee. Southern Bell Telephone & Telegraph Co. v. McTyer. Opinion by MCCLELLAN, C. J.: These may be said to be familiar facts in physics, and therefore within the common knowledge of mankind and within the judicial knowledge of courts: That atmospheric electricity, or lightning, is frequently discharged from clouds and passes to the earth; that metal wires strung in the air are good conductors of electricity, much better than the air; that animal bodies, the bodies of human beings among the rest, are also better conductors than the air or than wood; that electricity so discharged in the vicinity of such wires is liable and apt to pass into them and along them to their ends, and thence through the best conductor at hand into the earth; that, if a human body is in contact with the end of the wire, the current will pass through it to the ground, and that, though not in actual contact with the end of the wire whence the current must go to the ground, but near to it, the current, instead of passing through the air to the ground, will seek the better conductor of the body, pass through the air to it, and through it to the earth. Of course, the higher the wires extend, the nearer to the point of discharge in the air, the greater the likelihood that the current will pass into them, and, the greater the extent of the wires horizontally, the more danger there is of receiving and carrying such electric currents. It may also be said to be common knowledge that where two wires are strung near to each other, within a foot or two, on poles, through the air, after the manner of telephone and telegraph wires, there is a likelihood or liability that lightning, in its descent from the clouds, will strike and follow both of them to their ends, unless diverted by other more attractive conductors, and must necessarily then pass from them to the earth through the best conductor then in its general pathway. The business of maintaining a telephone system by means of transmitters and receivers, and of poles extending many feet in the air with wires strung upon them, and extending, for the transmission of words, into houses, public and private, is recognized as a legitimate business. It is, too, a business of a public or quasi Southern Bell Telephone & Telegraph Co. v. McTyer. public nature, in that those engaged in it in a town or city or given locality and using public streets and roads for their lines of poles and wires may be said to be under a duty to supply telephone service within such territory to all persons who desire it and pay for it, so that a system of lines and instruments established in a community in a sense meets a public demand and conserves public convenience. 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 and 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 to 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—the business being a legitimate one, in other words, though involving peril to others, its prosecution with the care that a man of prudence would exercise in view of its character would not entail liability for injuries which may result notwithstanding the exercise of such due care. The operation of a railway is attended with danger to the people which cannot always be guarded against; but, being a legitimate business, and conducive to the convenience of the public, its operation is not wrongful; it is not a nuisance. But if a railway were constructed and maintained and operated for no good purpose, and subserved no proper end, it would be a nuisance, and its operators would be liable even for injuries unavoidably inflicted in its operation. And so-to take an example from our own decisions-the driving of cattle through a frequented thoroughfare may be attended with more or less danger to persons using it, but their owner has a right to drive them there in the prosecution of his business if he exercise due care to avoid injury to others, and exercising that care he will not be responsible if VOL. VIII-38 Southern Bell Telephone & Telegraph Co. v. McTyer. injury results notwithstanding on the principle that “for the convenience of mankind in carrying on the affairs of life, people, as they go along public roads, must expect or put up with such mischief as reasonable care on the part of others cannot avoid." Matson v. Maupin & Co., 75 Ala. 321, 315. But if a man, without occasion therefor, turn vicious animals into the street, or negligently allow them to be in a street, and injury results, he will be liable, though he be guilty of no wrong or negligence while they are in the street. And the reason is plain, and the same in both the instances given: The presence of the dangerous thing is not justified by any consideration of public good or convenience; its being there is itself a wrong. And so it is, and for the same reason, with lines of telephone wire. The only justification for their being carried into a building and maintained there is the telephone service thus supplied by means of them. If they are put there not for that purpose, but for the mere convenience of the telephone company, and allowed to be in such condition as that persons and property in the building are liable to be injured by lightning gathered and brought into the building by them and there discharged, their mere presence is a wrong. So, when they were originally carried into the building, and equipped and maintained to supply the service to the owner, but at his instance the service has been discontinued and the instruments removed, and the company, instead of then removing the wires, merely cuts them loose from the instrument, twists their ends together, and leaves them thus dangling in the building, so that atmospheric electricity striking them anywhere along their course on the outside will be inducted into the building, and there discharged to the peril of persons and property, this is an unpalliated wrong on the part of the company. It is the creation and maintenance of a dangerous situation without that warranting occasion for it which may exist when the wires are in use without any occasion whatever, in fact; and the company is liable in damages for whatever injuries may result to persons and property rightfully on the premises. Southern Bell Telephone & Telegraph Co. v. McTyer. The facts averred in the sixth count of the complaint bring the case at bar within the category last stated. The defendant had strung its wires for a mile or more to and into the storehouse of one Thomas, and had there attached them to a telephone instrument for the purpose of supplying him with its telephonic service, had supplied him for a time and until he made known to them that he did not desire the service longer, and requested the company to take out its instrument. This the company at once did, but against the suggestion, not to say protest, of Thomas, the defendant failed to take its wires out of the house, but, cutting them loose from the instrument, twisted their ends together, and left them hanging in the store. A mercantile business was being carried on in the place, and, of course, the public were invited, and were expected, and had the right to be in there to make purchases of Thomas' wares. In view of the known capacity of these wires to collect and carry dangerous currents of atmospheric electricity into the store and there discharge them, to the deadly peril of persons in there at the time, and in view of the total absence of any occasion for the wires to be left there at all, there can, in our opinion, be no doubt that the company owed a plain duty not only to Thomas, but also to his customers, to remove the wires, and thereby to obviate this peril to him and to them. Nor was there any excuse or palliation for its failure to perform this duty.. Its remission of it was a positive wrong, committed by defendant's servant who removed the telephone and twisted up and left the wires. No man of ordinary care and prudence would have so acted. There is not room for two reasonable conclusions as to the character of the act in respect of negligence vel non. negligence per se, and to be so declared as matter of law. sixth count of the complaint, therefore, though it does not in terms characterize this failure of plain duty on the part of the defendant as negligence, avers facts which constitute negligence. The duty was owed to the plaintiff on its averments. The negligence of it resulting in her injury is actionable by her. The negligence is alleged, and also her injury in consequence of it. It was The The count suffi |