
    Sylvia TUCKER, et al. v. ALABAMA POWER COMPANY.
    81-343.
    Supreme Court of Alabama.
    Jan. 7, 1983.
    R. Ben Hogan, III, of Hogan, Smith & Alspaugh, Birmingham, and Benny L. Roberts, Gadsden, for appellants.
    James H. Miller, III, of Balch, Bingham, Baker, Hawthorne, Williams & Ward, Birmingham, and Roger C. Suttle of Inzer, Suttle, Swann & Stivender, Gadsden, for appellee.
   ALMON, Justice.

Summary judgment for defendant is affirmed on the authority of Simpson v. City of Montgomery, 282 Ala. 368, 211 So.2d 498 (1968).

The plaintiff, Sylvia Tucker, filed a complaint for damages alleging that defendant,Alabama Power Company, had negligently placed a power pole “in the median of Meighan Boulevard in dangerous proximity to motor vehicle traffic travelling on Meighan Boulevard and as a proximate cause of said negligence plaintiff [operating a motor vehicle] struck the power pole causing [specified injuries and damages].” Alabama Power Company filed an affidavit of its employee James D. Carlisle which included a map showing the pole to be approximately in the center of the median, six feet from one curb, seven feet three inches from the other, and forty-five feet from the end of the median. The map also shows a seven and one-half inch granite curb as the “typical curb layout.” These measurements are uncontested.

In Simpson, supra, plaintiff’s

“... automobile collided with an unlighted utility pole situated on the median separating East bound and West bound lanes for vehicular travel on said Highland Avenue, which said pole was located approximately 2 feet 7 inches from the East curb line of a four inch high granite curb of said median and approximately 4 feet 3 inches from the North curb line of said four inch high granite curb of said median and approximately 19 feet from the South curb line of said four inch high granite curb of said median ... . ”

282 Ala. at 370, 211 So.2d 498.

It is clear under the facts of this case that Alabama Power Company is not guilty of negligence. Therefore, there is no need to reconsider the Simpson case.

The judgment of the circuit court is therefore affirmed.

AFFIRMED.

TORBERT, C.J., and MADDOX, SHORES and JONES, JJ., concur.

BEATTY, J., dissents, joined by FAULKNER, EMBRY and ADAMS, JJ.

BEATTY, Justice

(dissenting):

It is difficult to rationalize the majority’s upholding of Simpson. To say that a power company cannot as a matter of law be negligent for its placement of a power pole in the median of a traveled highway flies in the face of reality. Had this same pole been placed on the shoulder of the highway the question of negligence would have been a question for the jury, and clearly both the “shoulder” and the “median” pose the same hazards and dangers for the traveler. Ordinarily, a plaintiff may recover for injuries proximately caused by the negligent placement or maintenance of a power pole, if the pole is located in close proximity to a public way or highway so as to be dangerous to the public in the legitimate use of the highway. Birmingham Electric Co. v. Lawson, 239 Ala. 236, 194 So. 659 (1940); City of Prichard v. Alabama Power Co., 234 Ala. 339, 175 So. 294 (1937); Gilbert v. Southern Bell Telephone & Telegraph Co., 200 Ala. 3, 75 So. 315 (1917).

The dissent in the Simpson case was directly on point in stating the following:

“In Birmingham Electric Co. v. Lawson, 239 Ala. 236, 194 So. 659, the Court upheld a jury verdict for the plaintiff where a pole was located approximately the same distance from the traveled portion of the road as was the pole in the instant case. The only difference is that one pole was on a shoulder and the other on a median.
“The majority opinion, when stripped, says that from this day forward there can be negligence on the part of one placing a pole in Alabama, if that pole is placed on a shoulder; but there cannot be negligence on the part of one placing a pole in Alabama, if that pole is placed on a median — no matter where.
“Medians do not necessarily have curbs, and poles can be located around blind corners within medians. Medians are constructed in many different ways and shapes. Medians will continue to be constructed in new and different ways in the future. The mind can fashion hundreds of future happenings where a pole, carelessly placed in a median, will cause injury and death to the innocent. The majority opinion grants free license to the pole placer within a median but restricts him to the scrutiny of a jury on a shoulder. I fail to see the difference....’’ Simpson, 282 Ala. at 374-75, 211 So.2d at 503.

Finally, the Court in Simpson as well as this Court should have considered the case of Alabama Power Co. v. Jackson, 24 Ala. App. 86, 131 So. 244, cert. denied, 222 Ala. 143, 131 So. 246 (1930). In that case plaintiff was allowed to recover for personal injuries resulting from the power company’s negligent placement of a power pole and power lines in the vicinity of a known dead tree next to the roadway. The dead tree was blown down onto the wires thereby causing them and a power pole to fall onto the highway and against plaintiff’s car. The court stated:

“We are of the opinion that the right of the power company to erect and operate towers, poles, and wire lines across, along and on public roads, did not excuse it from the exercise of ordinary care to prevent injury to others rightfully using the highway, and it was for the jury to determine from all the evidence whether the defendant exercised ordinary care in locating its said line or transmission wires on the side of the road where it was placed. If the defendant in the exercise of ordinary care should have placed its poles and wires on the opposite side of the highway, and it failed to do so, it would be guilty of negligence....” (Emphasis added.) Alabama Power Co., 24 Ala.App. at 88, 131 So. at 245.

I believe that the issue of negligence should reach the jury; therefore, for the reasons enumerated, I respectfully dissent.

FAULKNER, EMBRY and ADAMS, JJ., join in the above.  