Fitzgerald v. Edison Electric Illuminating Co.

207 Pa. 118 | Pa. | 1903

Opinion by

Mb. Justice Potteb,

We do not see that this case could properly have been taken from the jury. Its determination turned upon disputed questions of fact. There was evidence tending to show that the defendant company extended its wire across the corner of a building, and so close as to permit of its sagging against the cornice, and that in this way some of the insulating material was worn off, making the wire dangerous. No reason appeared for thus trenching upon private property, as the wire was not seemingly used to convey current to those premises. But if it had been used for that purpose, prudence would have required the wire to be stayed or fastened so that the insulation should not be rubbed off.

Nor was it shown that the accident was caused by anything else than the dangerous wire. In this respect this case differs from Elliott v. Allegheny County Light Company, 204 Pa. 568, cited by appellant. It clearly appeared iñ that case that the plaintiff fell from some cause entirely unconnected with the presence of the wire, and that he came in contact with the wire onty in the course of his fall.

In the present case it was at least a disputed question as to whether or not the accident was caused by the deceased coming directly in contact with the live wire. This question, as well as that of the contributory negligence of the deceased, was, we think, properly left to the jury, and they have found those questions in favor of the plaintiff.

The first, second, third, fourth and fifth assignments of error are in violation of Rule 31 of this court, in that there is no reference to the page of the paper-book where the matter referred to may be found in its regular order in the printed evidence.

We do not feel that the extracts from the charge which are made the subject of the sixth and seventh assignments of error contain anything which can fairly be held to unduly increase the burden upon the defendant company. When read in connection with the context in each instance they are unexceptional.

As to the form of action, this suit was properly brought by the widow in her own behalf and that of her son, they being the only parties entitled to recover. If the widow had lived until the suit was concluded, the sum recovered would have been divided between her and the child, as in case of the death intestate of the husband and father. If she had lived until after the judgment was obtained, but had died before it was paid, certainly her administrator would have been entitled to take the share coming to her. As she died during the pend-ency of the litigation, we can see no good reason why her administrator was nbt properly substituted to maintain the action in her behalf.

The question as to who should be substituted as plaintiff upon the death of the widow under circumstances such as these, is of no practical importance. The interest of the child in the proceeds remains and can only properly be paid to its guardian.

The suit might have been carried to completion by the next friend or guardian of the minor. But in any event, the proportions in which the sum recovered is to be shared between the child and the estate of the mother is a matter for future consideration and adjustment between those representing them respectively and does not concern the defendant company.

The assignments of error are overruled and the judgment is affirmed.