78 W. Va. 714 | W. Va. | 1916
The judgment complained of, standing on a verdict of a jury, is for the value of a horse lulled in a public road, by contact with a telephone wire, heavily charged with electricity from the defendant company’s trolley wire or high tension wire, or both, and disconnected from a farm dwelling house and thrown into the road by the owner of the house, to prevent injury to it and his family by reason of the charge of electricity it carried,
Pacts established and evidence tending to prove others render the first position manifestly untenable. Sometime before the construction of the defendant’s electric railway and erection of its poles and wires, the People’s Telephone Company, under permits given by the county courts of Lewis and Harrison counties, had put up short poles along a certain public highway and strung its telephone wires thereon. At certain places, the electric railway of the defendant, subsequently constructed, crossed the public highway on which the telephone lines were. At some of these crossings, if not all of them, the' defendant’s trolley wire carrying ■ six hundred volts of electricity was placed only about eight inches below the telephone wires and its high tension wire carrying twenty two thousand volts, sonic distance above them. On several. occasions ante-dating the occurrence which resulted in the death of plaintiff’s horse,- the heavy current from the defendant’s wires, by contact or otherwise, so heavily charged the telephone wires that they burned out telephone instruments, set houses on fire and severely shocked persons endeavoring to disconnect the wires from their houses to prevent injury. This dangerous interference had been brought to the attention of officers and agents of the defendant company, who had promised to take the telephone wires down and place them under the railway track at the expense of the railway company. The cost of repairing the injured telephone instruments or replacing, with .new ones, those burned out, had been paid bjr the defendant company. On the occasion of the injury for which this action was brought, a telephone ivirc seems to have broken at or near a place known as “Corley Stop,” and fallen down on the trolley wire. There is no evidence of this fact except the statement of an employee of the telephone. company, on cross-examination, that he had been told the line
The maxim, res ipsa loquitur, applies in cases of injury of this kind. Bice v. Electrical Co., 62 W. Va. 685; Snyder v. Electrical Co., 43 W. Va. 661. The agency of injury was the defendants electrical current, and the occurrence of the injury, itself, and alone, raises a presumption of negligence on the part of the defendant which it was bound to repel by proof of adoption of all reasonable provisions for safety. Injury inflicted by an agency so dangerous in character as to bring it within the principle, res ipsa loquitur, is evidence of negligence on the part of the person using and controlling such agency. Persons using deadly electrical currents are bound to the exercise of a very high degree of care to prevent escape or diversion thereof to the injury of any person. In Snyder v. Electrical Co., Judge Bbannon said: “I have ventured to call it demonstrative evidence of negligence; for, although the evidence must always be detailed by the mouths of witnesses, yet when the facts are thus disclosed, they eithér demonstrate negligence, conclusively, or tend to demonstrate it, subject to explanation by the defendant, showing that his conduct was consistent with due care.” In this case, the defendant made no effort to exonerate itself by proof of care, in the construction of its railway power line, to avoid injury to persons using the telephone lines or coming in contact with them. It
• The remaining inquiry is, whether the evidence of an intervening negligent or wrongful act by Elias McWhorter, the farmer who disconnected the wire from his house and cast it into the public road, is so clear and conclusive as to make the question one of law for the court and withdraw it from jury consideration. As to the position of the wire in the road the testimony is not clear. Ordinarily, country highways are not subjected to travel throughout their-entire width. There is a commonly used section bordered by unused portions on each side thereof. Neither the width of the road in question nor its condition as to-travel, is shown. When McWhorter disconnected the wire from the house, it fell in the yard and he then removed it to the road, but does not say in what portion of the i’oad he put it. He says he left it “along by the side of the road. ’ ’ Weekly, the man who was riding the horse when it came in contact with the wire says: ‘ ‘ The horse was along the side of the road there and he stepped on the wire and fell.” On cross-examination, he says: “It was run from one' pole right out in the gi’ound; right out in the road, along the road;” and again, “I never noticed but it was laying rather close to the pole, and there was something like 30, or 40, or 50 feet of it laying out in the road. ’ ’ About an hour and a half intervened between the time of McWhorter’s act and the injury to the horse, amply sufficient for subsidence of any excitement under which he may have been laboring, when he
Though certain elements or ingredients are essential to tlm existence of legal negligence, they generally arise out of re lated facts and circumstances; wherefore the tevin negligence is one of relative significance which caimot ordinarily be defined by reference to any arbitrary rules. It is always a wrongful affirmative act or am omission of duty, but what is right conduct in eitheiy cáse depends upon the facts; circumstances and surrourhding conditions. Under some circumstances, ignorance c]>n the part of the person charged with a wrongful act or emission, excuses; and, under others, it does not. There are m&my illustrations of this principle.. An experienced servant- injured by the negligence of his employer may be barred of his right of action, by reason of his contributory negligence, while an inexperienced servant injured in the same way would be allowed to recover, on account of his lack of knowledge of the danger and means of avoiding it. What would be negligence in conduct affecting a sick person, a delicate woman, a lame man, or a child, might not be so in the case of a strong, mature, healthy person. Bray v. Nathan, 81 Ga. 140; Huddleson v. Holiday, 50 Neb. 229; Cleveland &c. Railroad Co. v. Perry, 8 O. S. 750; Sleeper v. Sandown, 52 N. H. 644; Stanley v. Ceder Rapids Ry. Co., 119 la. 526; Sheridan v. Brooklyn City Ry. Co., 36 N. Y. 39. A person injured by contact with an electric current may be excused •oi exonerated from the charge of contributory negligence, by reison of his lack of knowledge of electricity or the condition of the particular wire through which he was hurt. Bice v.
-Both of these principles seem to be applicable here, the latter to- the defendant assuming to use, manage and control a powerful electric current, and the former to McWhorter, a farmer, not professnug any particular or special knowledge of electricity, nor making any\use of it except as furnished or supplied to' him by others assuming to have the skill and knowledge 'necessary to proper and sáfe utilization thereof, and by means and 'methods provided by fohem. His vocation or calling negatives the possibility of a presumption of any thorough knowledge on his part of the mys^iex’ious and deadly force known as electricity, and his conduction the occasion of his alleged negligent act tends very strongly to prove his. ignorance thereof. He handled the fatal telephone wire with his naked hands. From this fact, it may readily be inferred that he did not know it was sufficiently charged to injure or kill. He knew, however, it would burn out his telephone or set his house on fire, because he had heard so or because, he had seen the smoke escaping from his telephone. Though he says it was so- dangerous that he took it out of the yard a: id that he was actually afraid to try to cut it, his conduct clearly showed lack of appreciation of the situation and its requirements. Moreover, it contradicts his subsequent, interpretation thereof, on the witness stand, for he did cut the wire with a hatchet after it had killed the horse. As acts speak louder-than words, a jury might consistently say he was mistaken in his assignment of the reason for not having severed tie-wire. If he had even suspected it was dangerous, he would
Whether McWhorter, almost wholly ignorant of the qualities and characteristics of electricity-as the evidence proves, and called upon to ■ make some disposition of an electrified wire endangering his house and family, omitted that degree of care and prudence, in doing so, which any other ordinarily intelligent, prudent and careful man, having no special knowledge of electricity,. would have exercised, was clearly and undoubtedly a question for the jury.
Thus far we have assumed the correctness of the position that McWhorter’s negligence, if established, would have barred recovery from the defendant. As it is unnecessary to say whether this position is sound or not, we decide nothing respecting it. As the defendant’s current, negligently permitted to escape, continued throughout his act and beyond it, there may have been concurrent negligence, making either or both liable.
In view of the conclusion stated, it is apparent that, in our opinion, the court properly refused to give instructions virtually directing a verdict for the defendant and overruled the motion for a new trial. Nor did it err in giving instructions submitting to the jury the question of negligence on the part of the defendant.
Seeing no error in the judgment, we affirm it.
Affirmed.
