192 Ind. 253 | Ind. | 1922
This was an action against the appellant city for damages for negligently causing the death of Harry M. Green, by electrocution. The complaint charged that the appellant city operated an electric light and power plant, and maintained a line of poles on Twenty-second street, in the city of Logansport, on which were hung certain wires, known as arc wires and primary wires, respectively, that carried dangerous and deadly currents of electricity of 2,300 volts or more, and also a service wire leading from a transformer to the residences of patrons carrying electricity for domestic use, which was designed to carry only 110 volts, an amount that would not kill nor seriously injure a person coming in contact with the wire; that said Green owned and occupied a residence on Smead street, near Twenty-second street, and was a patron of appellant; who furnished him with electric current for lighting his residence at fixed rates; that said low voltage service wire running from the transformer along Twenty-second street was diverted and passed along Smead street to his said residence; that said high voltage wires carrying the dangerous currents of electricity and said low voltage service wire extending to his residence were so negligently maintained by the appellant city, suspended from short cross arms on the same poles, so near each other and so close to and extending through the branches of living trees growing on said streets, that currents of electricity were liable to be and were thereby transmitted through the branches of such trees from the wires carrying high and deadly currents to the one which extended to said residence; that all of said facts were well known to appellant city; that on July 3, 1919, by reason of said negligence of appellant in so main
Appellant moved to make the complaint more specific and reserved an exception to the order overruling its motion. After the return of a verdict in favor of the plaintiff (appellee) for $8,000, appellant filed a motion for a new trial, specifying as errors the giving of certain instructions, the refusal to give certain others, and the admission of certain evidence. This motion was overruled and appellant excepted. Overruling the motions to make the complaint more specific and for a new trial, respectively, are the only alleged errors discussed in appellant’s brief.
The motion to make the complaint more specific asked that the plaintiff be required to state from which of the wires carrying a high voltage current the electricity escaped into the service wire, to state the location of the tree through which it escaped, the period of time during which it had been escaping, and just how, in detail, the high and deadly current could be transmitted and how it actually was transmitted, either from the arc wire or the primary wire to the service wire.
Without stopping to consider whether or not there was
The death of appellant’s decedent occurred on the evening of July 8, 1919. Over an objection and exception by appellant a witness was permitted to testify that on April 10, 1919, the branches of shade trees on Smead street a few yards east of decedent’s residence, through which the low voltage service wire extended, were set on fire; that the fire would come down through those trees, and go all through them; and another witness was permitted to testify that at some time in the early spring of that year he saw the wires on limbs of the trees on Smead street, just east of decedent’s residence, on fire and blazing up two or three feet, and called the Fifteenth street station of the city fire department, and that upon a telephone order from the officer in charge of the men who came in answer to that call the electric current was shut off; without objection he further testified that said officer called up the electric plant and said to send over a trouble man. A third witness was permitted to testify over like objection and exception that early in March or the first of April that year he saw a fire in the trees on Smead street, east of decedent’s residence, near the low voltage
The appellant asked twenty-three instructions, of which the court gave nineteen, besides fourteen asked by appellee and six given on its own motion. These instructions fairly covered the issues joined on the pleadings. Appellee’s brief states that the instructions requested by appellant were not signed by appellant or its attorney, as required by §561 Burns 1914, Acts 1907 p. 652. This statement was not challenged by the reply brief, and nothing in appellant’s brief indicates that the statute was complied with. The refusal to give instructions which are not properly signed is not available error. §558, cl..5, Burns 1914, §533 R. S. 1881; Pittsburgh, etc., R. Co. v. O’Connor (1908), 171 Ind. 686, 699, 85 N. E. 969; Habich v. University Park Bldg. Co. (1912), 177 Ind. 193, 199, 97 N. E. 539; Terry v. Davenport (1908), 170 Ind. 74, 76, 83 N. E. 636; Hutchinson v. Lemcke (1886), 107 Ind. 121, 133, 8 N. E. 71.
But in the case at bar there was no evidence that the decedent knew or had any reason to suspect that the wire he touched was charged with a deadly current of electricity. There was evidence that a buzzing sound was made and that smoke was coming up from the cellar, and that he knew those facts. There was also evidence that after his death the insulation was found to be partly burned off the wires leading to a drop cord, and that a hole was burned in the outer insulation or cover of a steam pipe where the drop cord hung over the pipe. But there was no evidence that decedent knew anything about the properties of electricity, or knew that a current of electricity with which the cord was charged was causing the noise or the smoke, or knew that a charge of electricity which would cause a noise and produce smoke when the cord touched the cover of a steam pipe, would be dangerous to a person who touched the cord or the light bulb. In the absence of any evidence fairly tending to prove contributory negligence the inaccuracy of expression complained of was harmless. Evansville, etc., R. Co. v. Berndt (1909), 172 Ind. 697, 705, 706, 88 N. E. 612.
Appellant has not specified which of these contained needless and improper references to the current of electricity being deadly and dangerous. But it appears that in one instruction (No. 12) given at appellant’s own request the expression “high and deadly current of electricity” occurs four times, and that it is used again-in the very next instruction (No. 13) asked by appellant and given by the court. That being true we. decline to search through the other instructions to learn whether instructions not asked by appellant contained more of such expressions that were warranted by good taste. Objections relied on should be specifically pointed out in the briefs. -
The judgment is affirmed.