Doyle v. La Crosse City Railway Co.

| Wis. | Jan 30, 1912

Winslow, C. J.

The plaintiff’s claim is that he took hold of the guy wire with his right hand in order to assist himself upward, and that as he raised his left hand to adjust the cross-arm the hand came in contact with the span wire immediately in front of him, and that he received a shock of 550 volts, which gripped him, contracted his muscles, and then released him and let him fall to the ground. It is urged that this story is incredible, but we have not been able to come to that conclusion. It is true it was flatly denied by the evidence of the plaintiff’s helper, Peterson, and it is true that the jury would have been amply justified in concluding from the evidence that the plaintiff fell from the pole without any electric shock, but we are not convinced that the plaintiff’s version is impossible.

Our difficulty has been to discover any justification for the finding that the defendant was guilty of negligence. Granting that there was in the span wire at the moment of the accident a 550-volt current of electricity which found its way to the ground through plaintiff’s body when he touched the span wire with bis left band while bis right band was grasping the guy wire, still the defendant is not liable unless the presence of the electricity in the span wire was the result of its want of ordinary care.

The negligence found was that there was defective insulation of one or more of the bangers which the defendant ought to have discovered and repaired before the accident.

It is true that greater care is properly demanded of persons who are handling so dangerous an agency as electricity than of those who handle mere ordinary substances, yet the criterion of ordinary care is the same: it is such care as the majority or great mass of mankind exercise under the same or similar circumstances. Nagle v. Hake, 123 Wis. 256, 101 N. W. 409.

In the present case there is no .evidence tending to show negligence by the defendant, unless it be the evidence tending to show the presence of electricity in the span wire. Even if that condition existed, however, it does not necessarily follow that the defendant was guilty of want of ordinary care. If it appeared without dispute that the span wire had been put up on the previous day by competent workmen, using approved material and appliances, and that it was to all appearances in perfect condition, we suppose none would claim that there would be any sufficient ground for a finding of negligence. There are limits to human endeavor. Even if we exercise the greatest care in our power, accidents will sometimes unaccountably happen. The risk of such accidents all must assume. In the present case it seems, as far as the evidence shows, that there was nothing in the construction or appearance of the wire or the hangers that would even suggest that the insulation had become defective. The hangers were of an approved pattern in common use. They were composed of a copper “ear” with a groove on the top surface into which the trolley wire fitted and was fastened. From this a bolt two or three inches in length, constructed of some very tough, hard, nonconducting substance, extended upward into the iron ear which is attached to the span wire, and over this bolt, screwed on to the top of the ear, is a metal cap which keeps the insulated bolt in place. So long as the nonconducting bolt is intact and the cap is screwed on, even though it be not fully screwed in place, there is no possibility of the trolley wire or the ear in which it rests coming in contact with the span wire or the metal part of the hanger.

It appears that’ two of the hangers on the span wire in question had been in place two or three years, and one had been in place from five to seven years. There is no evidence that any of them had ever been loose or out of order in any way. They appeared to be all right on the morning in question. The plaintiff himself testifies that when he reached the top of the pole he looked around and saw that things were all right; the insulators and the trolley wire looked all right; he noticed the feed-wire running across the street above the trolley wires to the top of the old pole, and the insulator was all right there. He was but a few feet from all these fixtures. It seems to be established beyond peradventure in the case, therefore, that there was absolutely nothing to indicate any defect in the insulation of any charged wire at that place on the morning in question, and that, on the contrary, every appliance had the appearance of being in perfect order. As said before, it does not appear that any of the appliances at this place had ever been out of order or that the span wire had ever been known to be charged before.

This being the case, there can be but one possible ground of negligence claimed, namely, that the defendant had failed to exercise due care in inspecting the wires and insulators. If there were proof that such hangers became frequently out of repair and allowed the current to escape to the span wire, it might perhaps be claimed that there was evidence enough to go to the jury on the question whether the defendant was negligent in not making more frequent inspections. But there is no snob evidence. On tbe contrary, the plaintiff himself says that from his experience as a lineman he did not know that such insulators frequently became leaky or defective, and that he never sa;w one become defective so that it would leak. He admitted that .he had been a trolley lineman for years.

Another lineman of long experience with trolley wires, named Gibbons, called as a witness by the plaintiff, testified that he had known of the cap of a hanger becoming loose by reason of the trolley passing under it day by day; that he had known such things to happen at several places; that he couldn’t say how long such hangers had been on before they became loose, — it might be six months or a year, or at the end of ten years; that he could specify no time within which he had known a hanger to become loose, and that the loosening of the cap would not necessarily destroy the insulation; that it - might last for several years in that condition, giving perfect insulation.

This is practically all of the testimony on the subject of the length of time which ordinarily elapses before the loosening of a hanger takes place from use, and it will be readily seen that there is absolutely no testimony that hangers frequently become loose or defective so as to permit the escape of electricity. In fact the only reasonable inference to be drawn is that it is generally, if not always, a matter of years. Now the testimony is undisputed that the company made a thorough test of the whole line twice a year, in spring and fall, going over and tightening up all the hangers, and that the whole line was gone over in the spring of-1909 to see that the insulation was perfect and nothing loose.

In view of the lack of any evidence tending to show that more frequent inspection was customary with other companies, or was called for by the fact that the hangers easily or frequently became defective from use, and the further undisputed fact that there was absolutely nothing to indicate any defect in any of the hangers in question at the time of the accident, we do not think that the jury was entitled to find any want of ordinary care on the part of the defendant in the present ease.

This view of the case obviates the necessity of the examination of any further questions.

By the Court. — Judgment reversed, and action remanded for a new trial.