Alabama Power Co. v. Robinson

447 So. 2d 148
CourtSupreme Court of Alabama
DecidedFebruary 24, 1984
Docket82-741
StatusPublished
Cited by30 cases

This text of 447 So. 2d 148 (Alabama Power Co. v. Robinson) is published on Counsel Stack Legal Research, covering Supreme Court of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Alabama Power Co. v. Robinson, 447 So. 2d 148 (Ala. 1984).

Opinion

447 So.2d 148 (1983)

ALABAMA POWER COMPANY, a Corporation
v.
Barbara A. ROBINSON, who sues as Administratrix of the Estate of Thomas Gene Robinson, deceased.

82-741.

Supreme Court of Alabama.

December 22, 1983.
As Modified on Denial of Rehearing February 24, 1984.

*149 Harold A. Bowron, Jr. of Balch, Bingham, Baker, Ward, Smith, Bowman & Thagard, Birmingham, and William O. Walton, Jr., Lafayette, for appellant.

John W. Johnson, Jr., Lanett, and R.C. Wallace, Jr., Lafayette, for appellee.

MADDOX, Justice.

A number of issues are raised by appellant, but the dispositive issue is whether the trial court erred to reversal in permitting the appellee's expert witness to offer opinion evidence, over objection,[1] regarding facts neither observed by him nor hypothesized by the use of hypothetical questions. We reverse and remand for a new trial.

This is the second appeal of this case, see Alabama Power Co. v. Robinson, 404 So.2d 22 (Ala.1981), and involves a wrongful death action commenced by appellee Barbara A. Robinson, as administratrix of the estate of Thomas Gene Robinson.

On April 10, 1975, Mr. Robinson was killed when a citizen's band radio (CB) antenna he was assisting in lowering contacted one or more electric wires of appellant, Alabama Power Company. The accident occurred at the home of Robert and Cora Smith. Robert Smith was also killed in the accident. At the time the accident occurred, Mr. Robinson had been assisting Mr. Smith in taking down the CB antenna, which had been attached to the south side of the Smith home, so that it could be repaired. The antenna and the pole to *150 which it was attached were more than 36 feet in height.

The facts indicate that Smith and Robinson discussed taking the antenna down and the consequent danger if the antenna struck appellant's power lines running along Smith Street parallel to the Smith house. The primary line of this series of lines carried 7,200 volts. There were other less powerfully charged lines close to the house. Running from a transformer attached at the set pole to the Smith residence was a three-wire service drop of wrapped, but uninsulated, wire. These lines were 120/240 volt lines. From the record, it does not appear that either Smith or Robinson was aware that the service drop lines were uninsulated.

At trial, appellee sought to establish that some part of the antenna which Robinson was helping lower contacted the uninsulated service drop lines, resulting in a shock which caused the men to stumble and drop the antenna onto the more highly charged power line. The appellant, on the other hand, attempted to show that the antenna struck the 7,200-volt power line first because the two men were careless in failing to detach a supporting guy wire; appellant says that because the guy wire was not detached, it prevented the antenna from being lowered in such a manner as to avoid touching the power lines on Smith Street, and that the guy wire pulled the antenna back so that it fell into the more highly charged power line.

At the trial, appellee's expert witness, Andrew Payne, was allowed by the trial court to testify, over objections and a motion to exclude, that the antenna "apparently" contacted appellant's service drop lines. This testimony by appellee's expert witness, along with the objections, appears in the record as follows:

"Q. If you eliminated the unnecessary conductor and had the construction as been [sic] identified on this plaintiff's exhibit 163, how would that have affected this accident here today?
"A. It would have also missed that one. To make my answer complete though, I do think I should add to that, the fact that we are talking about the contact with the primary, with the 7200 volt to ground wire. But, apparently there was also contact with the 120/240 volt service drop. [Emphasis added.]
"HAROLD BOWRON—Your Honor, I object to that, there's been no testimony, no evidence of that, that's pure speculation and conjecture, it's nothing but guess, speculation and conjecture, and it invades the province of the jury. There's been no evidence of that and no testimony of that.
"COURT—Well, it's an inference that can be drawn I believe, and he can, for the purpose of giving his answer he can assume that there might have been a contact with a 110 or 120/140 [sic] volt service line. That's an inference that can be drawn from the evidence.
"HAROLD BOWRON—And just so my objection is complete, I move to exclude his answer in that regard, and I object to it on ground that it invades the province of the jury. There's been no evidence, no testimony of that, no one has testified to that; as a matter of fact, the evidence and testimony has been to the contrary, that the pole involved was started in a direction to the right toward the corner of River Road and Smith Street.
"JAMES CALDWELL—And we object to the attorney testifying.
"HAROLD BOWRON—Well, there's been no evidence and no testimony to that effect, it is pure speculation and conjecture on his part, and it is a voluntary statement on his part, he said, `of course I must add,' and that he volunteered that, there's been no evidence, no testimony of that; the evidence is to the contrary and I move to exclude it.
"COURT—Motion denied.
"HAROLD BOWRON—May I have a continuing objection, your Honor?
"COURT—You may.
"A. The witness said—
"Q. Mr. Noles?
"A. Mr. Noles said that when he looked up, he noticed that both of the men had *151 had hold of the antenna before the antenna touched the 7200 volt wire, that they were in trouble, that they had begun to slouch. That indicated to me that that was the contact with the 120 volt wire, that's what I would have expected to happen if they had come in contact with a 120 volt wire. And, the 120 volt wire of course, many people have been killed by a contact with a 120 volt wire, but also a great many more people have been stunned or shocked and either revive themselves or were revived by others. So, being shocked with a 120 volt conductor is one thing, but touching a 7200 volt wire is something entirely different.
"* * *
"Q. Do you have any opinion if the guy wires played any part in this accident or not?
"A. They did, yes sir.
"Q. And in what respect is that, please sir?
"HAROLD BOWRON—Your Honor, I assume I have a continuing objection on each of the grounds stated previously. I object to the form of the question, and it is calling for a narrative statement. It is nothing but speculation and conjecture on his part, not premised on any facts or evidence or testimony in the record.
"COURT—Based upon the evidence you heard in this trial.
"A. Yes, it is, everything I said is based upon what I heard in the trial, yes sir.
"Q. Okay, go ahead.
"A. Mr. Noles, the first witness described the men as slouching and also that he had unfastened the guy wire on the west side of the house. And, we know the service drop wires were weatherproof, which didn't provide any insulation to start with, and then there were gaps in that where the bare conductors below the weatherproofing were exposed."

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447 So. 2d 148, Counsel Stack Legal Research, https://law.counselstack.com/opinion/alabama-power-co-v-robinson-ala-1984.