61 Fla. 167 | Fla. | 1911
(after stating the facts.)— The first and second assignments of error are based on the refusal of the defendant’s motion to strike out or amend the fifth count of the declaration upon the grounds that same is so framed as to prejudice, embarrass and delay a fair trial of this action, because the allegations of negligence are so general the defendants are- not advised what particular acts of omission or commission will be attempted to be proven. It is admitted that the granting of such a motion rests in the legal discretion of the court, and its action will not be reviewed unless the interest of justice requires it. In this case we think it sufficient to say that the plaintiff in her briefs, while claiming that the Circuit Judge committed no error in his ruling, yet insists that
The third, fourth and fifth assignments of error question rulings of the court admitting evidence as to the number and ages of the living children of the plaintiff and her deceased husband. It is admitted that it is proper for the widow to prove there was a family, but the contention is that there is a limit to such testimony, and that she should not be permitted to prove its size and the ages of its members, because this would tend to an inquiry as to the life expectancy of its members, the state of health of each, and other matters, thereby wandering off into the particulars of collateral matters, and laying the foundation for exciting the sympathies of the jury. The only case cited in support of this contention is Louisville & N. R. Co. v. Collinsworth, 45 Fla. 403, 33 South. Rep. 513. In the cited case the action was brought, not by a widow for damages caused by the negligent killing of her husband, but by an employee to recover damages for personal injuries to himself, and it was held that evidence as to the size of his family was incompetent. In the case of Florida Cent. & P. R. Co. v. Foxworth, 41 Fla. 1, 25 South. Rep. 338, there is a learned and exhaustive discussion by Mr. Justice Carter of the damages which a widow may recover for the negligent killing of her husband — all the matters which a jury may take into consideration in estimating her damages are therein set forth. Among other elements of damage it is there said: “And they may also consider his services in assisting her in the care
The sixth assignment is based on the ruling of the court permitting the plaintiff to ask- Dr. J. Whiting Hargis the following question: “After having examined the body as you stated, and if it were a fact that just at the time or prior to the death of Mr. Sutherland his body came in contact with an electric wire or apparatus conveying electricity carrying 1000 volts or 1500 volts, would that have produced death according to your knowledge of the body and conditions as I stated them?” Dr. Hargis answered the question in the affirmative; but on cross-examination qualified his answer by saying that he understood him to say 1500 or 1800 volts. The objection was made on the ground that there was no evidence.to the effect that Sutherland’s body just at the time or prior to his death came
In the case of Baker v. State, 30 Fla. 41, 11 South. Rep. 492, this court held that “Whereas an expert may not be interrogated upon an hypothesis having no foundation in the evidence, it is yet not necessary that the hypothetical case put to him should be an exact reproduction of the evidence, or an accurate presentation of what has been proved. Counsel may present a hypothetical case in accordance with any reasonable theory of the effect of the evidence, and if the jury find that the facts on which his hypothesis or theory of the effect of the evidence is based are not proved, the answer of the expert necessarily falls with the hypothesis.” Williams v. State, 45 Fla. 128, 34 South Rep. 279. Also see Pensacola Electric Co. v. Bissett, 59 Fla. 360, 52 South. Rep. 367.
The eighth assignment of error is based on the giving of instruction No. 2 requested by the plaintiff below. It is as follows: “A company maintaining electric wires over which a high voltage of electricity is conveyed rendering them highly dangerous is under the duty of using the necessary care and prudence at places where others have a right to go, to prevent injury.” This instruction is one of the instructions given by the trial court in Jacksonville Electric Co. v. Sloan, 52 Fla. 257, 42 South. Rep. 516. It is said in the briefs of defendant in error that this court' approved said instruction in the Sloan case. We can find nothing in the opinion in the Sloan case either approving or disapproving said instruction. It is merely given as one of the instructions in the case.
In special instructions numbered 4, 9 and 14 given at the request of plaintiff in error the jury were clearly instructed that if the deceased Sutherland came to his death by reason of defects in the wires and fixtures in the mill of DeSilva Company they should find for the defendant. No possible harm could have resulted to the defendant from this instruction which sets forth a perfectly correct-proposition of law.
Taking up the assignments of error in the order in which they are discussed in the briefs of the plaintiff in error, the next to be considered is the twenty-sixth, which is as follows: “And where the.person or company furnishing the electric current supplies such current through wires, lamps and other apparatus installed by other parties, then before sending the current through such apparatus, the one supplying the electric current must on his own responsibility make reasonable inspection of the apparatus to see that it is fit for use; but the one furnishing the light does not become an insurer against danger in the use of electric appliances furnished.” The contention here is that this charge states an erroneous proposition of law, and one that holds the defendant responsible for defects in, or failure to care for the wires and instrumentalities for supplying light in the DeSilva Mill, even though under its contract with the owners of the mill defendant was merely to deliver the electric current to the owners’ wires at the entrance to the mill. It is also contended that it is contradictory to other instructions given at request of plaintiff in error, viz.: 4, 9 and
“4. If the jury should find from the evidence that the deceased Charles W. Sutherland, came to his death as the result of an electric shock received by coming in contact with an electric light wire in the mill of DeSilva & Company that the wiring and fixtures of the mill were not under the control of either of the defendants, that neither of the defendants were under obligations to the owners or operators of the mill to keep them in repair, but that obligation rested upon such owners and operators, and that the shock received by the deceased was caused by some defect in the wires or fixtures of the mill, then the jury should find for the defendants.”
“9. If the defendants have produced credible evidence that the wires extending from the electric light plant to the transformer at the DeSilva Mill building and from the transformer to and into the metre in the building were in good order and condition, properly constructed and of proper material, such as are considered standard in the science of electric lighting, and that the transformer was of standard make, and in good condition and properly working at the time of the death of Charles W. Sutherland, then you should find for the defendants.”
“14. If the defendant did not undertake to control or to- keep in repair the wires receiving the secondary current situated in the DeSilva Mill, but merely to supply the electric current at the point where its wires and appliances were attached to the system of lighting wires situated in said building, then he cannot be held liable for the death of one working in said building by electric current, if the death was caused by a defect in the wires or instrumentalities situated in said building over which
In this connection the whole of the charge of the court must be considered. The judge of his own motion charged the jury ás follows: “Persons and corporations who furnish electricity commercially to the public for lighting and mechanical purposes are held to a high degree of care in the handling of the electricity they may supply. It is a dangerous agent, liable to do damage to persons and property, and the law requires that in the handling and furnishing of the electricity to persons and corporations, should it handle it and furnish it to other people, must use the highest degree of care and diligence to avoid injury to others, commensurate with the business and its surroundings, of course, the degree of care is not so high as to render it impossible to furnish it at all, for fear somebody might get hurt, but it is the highest degree of care which it is possible, commensurate with the business in which they are engaged. That duty extends to the control of the electricity from the plant where it is manufactured until it is delivered to the customer’, wherever that point may be,” &c.
Considering the instructions given at request of plaintiff in error, and the whole charge of the court bearing on the point, and the fact that there was no evidence of any defect in the electrical apparatus in the DeSilva Mill, and no contention here that there was any, it does not seem to us that the portion of the charge here objected to could reasonably have produced the effect contended for by it. It was simply intended to state a general proposition of law, and its application was restricted by the other instructions and other portions of the court’s ' charge. We find no reversible error under this assignment.
The tenth and twenty-fifth assignments of error are argued together in the brief of plaintiff in error, and we shall consider them together'.' The tenth assignment is based on instruction No. 5 given at request of the plaintiff, and is as follows: “Though electricity is the most powerful and dangerous element known to science, it has become part of the commercial, industrial, business and domestic life of the world, it can neither be seen or heard, and is as deadly as it is invisible and silent; but though such are its qualities, the same science that discovered it can control it in the endless variety of uses to which it has been put, and neither death nor danger need be encountered from it if properly guarded against by those whose duty it is to have it safely conducted to the points at which it becomes a useful and harmless agency.”
The twenty-fifth assignment is taken from the charge given by the court, and is as follows: “Electricity is a dangerous agent, but experience has demonstrated that it can be controlled so as to be safely supplied to the public for lighting purposes, and it is the duty of persons and corporations undertaking to supply electricity for lighting purposes, to supply the premises through lamps, wires and other apparatus, so constructed and installed as to safeguard persons who may come in contact with any part of such system, from dangerous electric shocks, and in the discharge of such duty the one furnishing the light must exercise a practicable degree of care, skill and diligence in the construction and maintenance of its plant and appliances.” In this connection we must of course
The charge complained of in the 25th assignment of error, though argumentative, is not quite so objectionable as the one just considered: We think, however, it could be very well omitted in stating the law of the case to the jury-
Assignments numbered eleven, twelve and twenty complain of instructions Nos. 6 and 7 given at request of
Instruction No. 7 is as follows: “The degree of care, prudence and, oversight required of an electric company, when it embarks in a business so menacing to life and safety is that it ought to use that degree of care that is commensurate with the danger it creates. It must know whether its appliances are reasonably safe and in order. It will not be allowed to turn loose such deadly agency without first taking every reasonable precaution to prevent its injuring those, among whom it is sent, or else it must bear the consequences of such failure. It is the duty of the company supplying electricity both to provide such appliances as are reasonably safe, and by proper inspection and oversight to keep itself informed as to whether they were safe.”
The part of the charge complained of in the twentieth assignment is as follows: “And they must in furnishing it do so through wires for lighting and lamps, and other apparatus which are efficient to deliver the electricity in proper quantities and so control and distribute it as not to be dangerous to persons who properly come, or may come in contact with the lamps and wires.” The first part of the sentence is as follows: “That duty extends to the control of. the electricity from the plant where it is manufactured until it is delivered to the consumer wherever that point may be.” It seems to us the
The sixth instruction is taken literally from the headnote in Alexander v. Nanticoke Light Co., supra.
Instruction No. 7 is adopted with some little change of phraseology from the opinion in the case of City of Owens boro v. Knox's Adm’r, 116 Ky. 451, 76 S. W. Rep. 191. The headnote in that case states the law as follows: “Where a municipal corporation owned and operated an electric plant the degree of care required in the maintenance of its wires for the distribution of electricity was not the same as that required to the safe condition of its streets, but it was bound to know whether its appliances were reasonably safe, and to keep them in a reasonably safe condition.” In this case a child fourteen years old while passing along a street of the city inadvertently and innocently came in contact with a guy wire running from the top of a pole along which were strung the wires for conducting the electric current to a -short post set near the sidewalk. By imperfect insulation or other neglectful failure to keep the wires from coming in contact, the guy wire became charged with a heavy current of electricity. The child was severely shocked and burned. On this state of facts the law was laid down as. stated.
The many cases cited by the defendant in error in her brief, illustrates the great difficulty of putting into a
In the case of Jacksonville Electric Co. v. Sloan, supra, the opinion and syllabus were written by the writer of this opinion. In the 13th headnote it is stated: “Electricity is an invisible force highly dangerous to life and property, and those who make, sell, distribute and use it are bound to use care in proportion to the danger involved.” On page 289, it will be seen that this rule was taken from 2 Cooley on Torts, p. 1192. We there said: “We do not deem it necessary to go into an examination of the numerous cases illustrating and enforcing the foregoing principles. Whatever qualifications they may have, have no application to the facts of this case. Applying them to the facts which we have heretofore stated the evidence tended to prove we cannot doubt that it was the duty of the defendant to use reasonable care to see that the current of electricity was not turned upon the wire while the employees of the defendant were working upon it in order to splice it. The evidence does not show that any care or precaution of any sort was taken by the defendant.” In this case, then, reasonable care was stated as the measure of the duty.
In Joyce on Electricity, section 115, it is said: “A company maintaining electric wires over which a high voltage of electricity is conveyed, rendering them highly dangerous to others, is under the duty of using the necessary care and prudence at places where others may have the right to go, either for work, business or pleasure, to prevent injury. It is the duty of the company, under such conditions, to keep the wires perfectly insulated, and it must exercise the utmost care to maintain them in
In the case of Denver Consol. Electric Co. v. Lawrence, 31 Colo. 301, 73 Pac. Rep. 39, the rule is laid down that the Electric Company must “do all that human care, vigilance and foresight can reasonably do, consistent with the practical operation of its plant, to protect those who use its electric light.” This is a case bearing some analogy to the one at bar. Other courts express the duty of an electric company by such phrases as “a high degree of care commensurate with the danger;” “the highest degree of care that skill and foresight can attain consistent with the practical conduct of the business, under the known methods and the present state of the particular art.” Denver Consolidated Electric Co. v. Walters, 39 Colo. 301, 89 Pac. Rep. 815, 9 Am. Elec. Cas., 1013-1020. Also in the same volume, 9 Am. Elec. Cas. 687, in the case of Morhard v. Richmond Light and Railroad Co., 111 App. Div. 353, 98 N. Y. Supp. 124, it is said: “An Electric Light Company furnishing current for lighting buildings
Instruction No. 7 is not so objectionable, but it is somewhat argumentative, having been taken from the body of the opinion of the Kentucky court, where it is arguing out to a demonstration the duty of the electric company.
In the 13th assignment of error the plaintiff in error complains of the 9th instruction given at the request of defendant in- error. It is as follows: “If an arc was formed in the transformer by reason of a defect in the coils therein, which was due to the negligence of defendants, and on account thereof Sutherland was killed, his
Assignments 23 and 24 are based on a part of the charge of the court covering about one page. The contention is that these portions of the charge make the defendants responsible for the condition of the wiring and apparatus in the DeSilva Company Mill. We have care fully read these portions of the charge and we can discover no foundation for these assignments, when all of the charge and all of the instructions are considered together.
The charge complained of in the 22nd assignment is alleged to be confused and misleading. It is as follows: “By a preponderance we mean the greater weight of the evidence, not necessarily the greater number of witnesses but the weight of the evidence — just as if you had a scale which would weigh the testimony — you put all the testimony for one side in one scale or balance, and all the testimony for the other side on the other balance or side,
The seventeenth and eighteenth assignments complain of the refusal to give the twelfth and seventeenth instructions requested by the defendant below.
Instruction number twelve is as follows:
*195 “Unless the jury can find from a preponderance of the evidence that the death of Charles W. Sutherland was caused by an electric shock and further that defendants, or one of them were negligent and by such negligence, the electric shock which killed Sutherland, if he was killed by such shock, was produced or caused, they cannot find a verdict for the plaintiff against either defendant.”
Instruction number seventeen is as follows:
“If the jury should find that the death of Sutherland was produced by electricity, but the evidence should leave it uncertain whether the defendant, or either of them were' negligent, or if it should show that there were two or more acts of commission or of omission either of which might have caused the current to kill Sutherland, for some of which thé defendants were responsible and for others they were not, and the evidence leaves it uncertain which of such acts caused the injury, then the jury should find for the defendants.”
It is contended that the twelfth instruction should have been given because it required the jury to find from a preponderance of the evidence, the death of Sutherland from an electric shock and that this shock was caused by defendants negligence. We think that instruction number twelve was amply covered by the general charge of the court, and by several instructions given at the defendants request — particularly instruction number fifteen.
It is contended that the seventeenth instruction should have been given “because even though the death from electricity was' proved, still if it was uncertain whether the death was caused by a negligent act, or whether though so caused the defendants or the DeSilva Mill Company were responsible for that act, the yerdict should have been for the defendant.
So far as we have been able to discover, there was no
All that is said about assignment number sixteen is “It was likewise error to refuse the instruction mentioned in the sixteenth assignment.” We do not think that this remark can be regarded as an argument of that assignment.
The only other assignment of error which is argued questions the sufficiency of the evidence to support the verdict. Upon this, it is only necessary to say that in view of the condition of the evidence, we are not able to say that the errors we have pointed out in defining the duty of defendant towards its patrons were harmless.
The judgment is reversed and a new trial awarded.