261 F. 297 | 6th Cir. | 1919
The administrator sued the Electric Company for injuries resulting in the death of his decedent, caused by alleged negligence of the Electric Company in failing to keep properly insulated its high-tension power wires. There was trial by jury, and verdict for $10,000. Defendant’s motion for new trial was denied, on condition that plaintiff remit $5,000 from the verdict. The remittitur was made under protest. Under the writ in No. 3299, the defendant complains of the judgment against it. In No. 3307, the administrator complains that he was required to remit.
The theory on which plaintiff recovered is that decedent, then 7 years of age, while passing along the sidewalk of a public street in Bristol, touched or seized a piece of telephone wire, suspended from a tree, overhanging and terminating within three feet of the sidewalk, the telephone wire being charged with electricity through contact with defendant’s wire at a place where the insulation was worn off or was defective, whereby decedent was either killed directly by the shock or, as the result thereof, by being thrown so violently to the sidewalk that he was killed by the breaking of his neck. Defendant assigns several alleged errors.
The record would support an inference of negligence in failing to discover and remedy the condition in question. In the briefs here there is no contention to the contrary. The fact that the telephone wire carried no current, except as it came in contact with an uninsulated portion of defendant’s electric wire, and that it was not found in contact with the uninsulated spot immediately following the accident, does not necessarily prove that it was not in such contact when seized by the deceased, as a loosely hanging wire would naturally change its position from time to time, especially when seized or touched. The boy’s neck was found to be broken, presumably from the fall; but defendant would be liable for the effect of a fall caused by an electric shock, even though not sufficient in itself to cause death. There was testimony on the part of physicians and others that the boy’s hand did not show signs of being burned by the wire, opposed to which was testimony having a tendency to the contrary. There was also evidence of a lack of other symptoms normally to be found in case of death by electrocution, also that the telephone wire did not show such a burn as would naturally be caused by contact with defendant’s highly charged wire; but such testimony did not necessarily overcome the theory that the child had received shock enough to cause him to fall, although not strong enough to have electrocuted him.
(a) The accident occurred on Eleventh street. A witness, Kiebel, who lived on Anderson street, the second lot west of Eleventh street, after testifying that he had noticed after the accident (presumably immediately) dead leaves in the trees around the electric wires in question, that the insulation had worn off the inside wire to a great extent, and that the outside wire had some patches of insulation off, was permitted to testify that—
“The insulation was oft a large per cent, of the wires along Windsor avenue and Eleventh street and Anderson street in this immediate locality at the time of the accident, and had been in that condition from 10 to 12 years at least.”
The objection that the testimony was not confined “to the point of the accident” is without apparent merit. Moreover, under the charge, recovery was not permitted on account of defective insulation elsewhere than at the point where the accident occurred. That the condition was shown to have existed several years did not make it the less pertinent.
We find no error in the court’s action. The testimony related to what seems to have been the vicinity of the accident. In view of the previous testimony, it was open to inference (though not to presumption) that a condition found a month later existed at the time of the accident. Upon this record, we have no difficulty in holding that the trial judge did not exceed the limits of a fair discretion in admitting testimony that the general condition of that portion of defendant’s wire lines which included the place of the accident had long been bad, and that the wires had been in use for many years. Vicksburg, etc., R. R. Co. v. Putnam, 118 U. S. 545, 553, 7 Sup. Ct. 1, 30 L. Ed. 257. Such testimony was peculiarly pertinent as affecting the question of due
. We have examined the remaining errors assigned by defendant, and find no merit in them. We think defendant not entitled to complain of the judgment.
That a state statute having such effect is not within the Conformity Act appears to us too plain for argument. It seems enough to refer to this court’s discussion of the general subject in Knight v. Illinois Central R. R. Co., 180 Fed. 370, 103 C. C. A. 514. The decisions giving effect in the federal courts to state statutes guaranteeing as of absolute right, and as matter of .law, a second trial of an action for the recovery of real property within the state (Equator Co. v. Hall, 106 U. S. 86, 1 Sup. Ct. 128, 27 L. Ed. 114; Smale v. Mitchell, 143 U. S. 99, 12 Sup. Ct. 353, 36 L. Ed. 90) are not analogous. Such statutes are not merely remedial, but are matter of substantive right, like the right to voluntary nonsuit. Barrett v. Virginian Ry. Co., 250 U. S. 473, 478, 39 Sup. Ct. 540, 63 L. Ed. 1092; Knight v. Illinois Central R. R. Co., supra. Simms v. Simms, 175 U. S. 162, 169, 20 Sup. Ct. 58, 44 L. Ed. 115, is not opposed to the conclusion we have reached. So far as of interest here, the point there decided is that the Supreme Court of the United States, on affirming a judgment of the Supreme Court of a Territory, will so modify that judgment as to correct the failure of the territorial Supreme Court to give effect to a right of remittitur while the case is in that court — given by a territorial statute. Inasmuch as we think the court below, in requiring a remittitur as condition of denying motion for new trial, was well within the limits of a proper discretion,
The order will be that the judgment of the District Court is affirmed; the defendants in error under the respective writs to recover his or its costs of this court.