112 P. 394 | Mont. | 1910
delivered the opinion of the court.
The complaint in this action, after alleging the corporate character of the Missouri River Power Company, reads as follows:
“That when the plaintiff went to work at the said point induced by the company and by S. L. Case to believe that there was only a current of 2,650 volts and 60 amperes, he sufficiently and properly and carefully insulated himself for protection against the current which the company and S. L. Case had led him to believe was there; but he was in no wise insulated nor protected from the current which was actually in the said wire as aforesaid, and by reason of the said excessive current, and the said negligent, order, and plaintiff’s careful obedience thereto, the plaintiff was grievously burned by the said current, sufficient in all respects to do great bodily injury to life and limb of men. That by the said burnings, the said defendants did injure the plaintiff’s right ear so that he is disfigured for the remainder of his natural life; did burn the plaintiff on his left arm whereby he suffered great pain and injury; did burn the plaintiff for a space of about three inches wide all the way and extending from the wrist almost to the elbow on the right arm; did so bum the plaintiff’s right hand that he can never straighten any of the fingers in the right hand save only when the wrist is at one certain angle with the radius and the ulna; and thereby did permanently and for all times render almost worthless the right hand of the plaintiff, and seriously impair his earning capacity in his trade as an electrical appliance worker for the remainder of his natural life. That the plain
A general demurrer to the complaint was interposed and overruled. Thereupon the defendants answered jointly, admitting that Case “was the company’s superintendent at its power station near the High Ore mine”; that the plaintiff was in the employ of the defendant corporation, for hire; denying that Case at any time “negligently gave him a negligent order, or negligently or otherwise ordered him to do work of great danger”; admitting that plaintiff “while at .work at a point near the Western Iron Works received certain injuries,” but denying “that the injuries were due to or occasioned by any negligence or negligent omission on the part of the defendants or either of them.” Defendants also alleged affirmatively, as follows: “That the injuries, if any, sustained by the plaintiff were due to and proximately caused by Ms own contributing fault and carelessness”; and were “due to and caused by dangers, the risk of injury' from which plaintiff had theretofore assumed.” There was a reply putting in issue the affirmative allegations of the answer. The cause was. tried to a jury, which returned a verdict in favor of the plaintiff, and against both defendants, for the sum of $8,000. Judgment was entered for tMs sum, whereupon the defendants moved for a new trial. The court entered an order denying the motion, on condition that the plaintiff remit $2,000 from the judgment. This he did. The appeals are from the judgment and the order denying a new trial.
Plaintiff testified at the trial: “My position with the company was that of lineman and wireman. On August 4, 1907, I replaced a fuse at a point about two blocks east of the Western. Iron Works. I replaced a wire in the place of a fuse at Mr. Case’s request. The day before I took a fuse off of there and gave them to Mm. They had been blown. I presume that excessive current had blown them. I examined one of these fuses about thirty-two days afterward, after I was able to go to the
James Collins, who was present at the time of the accident, testified for the plaintiff: “When the arc started, Gleason was putting on the second fuse; I do not know what became of the third fuse. We always try to avoid shutting down a customer. The only way in case of removing a fuse block is to jumper
E. M. De Mars testified for the plaintiff that he was an electrical worker of twenty-two years’ experience and was foreman of an electrical company. Being shown the fuse which plaintiff claimed to be the -third one in question, he testified: “Three hundred amperes would not explode this; it would carry 300 continuously. I would say that it would take 1,000 amperes to explode this fuse, and a voltage of 2,650. There is a difference between blowing a fuse and exploding it. It would take 100 amperes to blow the copper wire on the back. The soldering would melt and the fuse, but the copper wire carries great heat. High amperage has the effect of burning the wire. Bridging or jumping across is considered the safe way by workmen for a number of years. From my experience and from my work for the last ten years I would say that it was safer to furnish a way for current to flow, rather than to have the opportunity to form an arc. The safety or danger of putting in those fuse blocks with or without jumpers depends entirely on the current in the wire. There is always danger in high-tension pressure.”
W. S. Guthrie, an electrical engineer, testified: “As I remember it, there were four customers on the line that day. The customers were the Bed Metal Company, which was behind the place where Gleason was working, the Western Iron Works was on the same line, the Crescent Creamery, the Western Lumber Company. I do not know whether the Butte Beduction Works was on the far end of it at that time or not. From my experience, you would get a fearful are by breaking the contacts on a line which is carrying 2,650 volts and 60 amperes. An are which would be formed at the same voltage and 200 amperes would be just that much worse. The amperage has nothing to do with an arc. One way to preserve continuity of service is to jumper with a copper wire. You cannot pull a fuse out without getting an are, but if you jumper you get no flash or are. The safer way is to jumper. It is not customary when you send a man to change a fuse to tell him whether to jumper it or not. He is supposed to use his own judgment whether he should jumper it or not, and to do everything he can for his own safety. ’ ’
S. L. Case testified: “I am one of the defendants. There were probably half a dozen customers on that line altogether. I think there were six. The Leonard and Barus were on that line. The Barus load was about 1,350 to 1,400 horse-power. The amperage of the Barus would be approximately 270 and some odd. The Leonard was in addition to that, as was also the Western Lumber Company, the Western Iron Works, the Crescent Creamery, and the Home Baking Company. At 1 o’clock P. M. of that day the amperage on that line would be approximately 480. Gleason did not bring the fuses that had been burned back to me, and I did not tell him as to whether
E. M. De Mars, recalled for the defendant, testified that in his judgment an amperage of 60, under the circumstances shown, would not cause an are.
James Keefe, city electrician of Butte, testified: “Of course, every man does his work a little different, but I would put a jumper around in order to be safe, if I were sent out on a wire with a current which I knew contained 2,650 volts and 60 amperes and the line had three fuses which I was to take out and replace. By jumpering you will prevent an arc.”
L. L. Quigley testified: “On August 5, feeders 4 and 5 were cabled in together going into the station at that time. On No. 4 there would be about 220 amperes and on No. 5 there would be close to 500—480 to 500. No. 4 and 5 were headed together at the bridge. The Barus and Leonard were working at 11 that morning. The load that was going over No. 4 feeder was the same load that was going out over there for two or three days previous. ’ ’
AV. L. Miller testified: “In August, 1907, I was employed by the Missouri Biver Power Company and had charge of the Butte station which is here in question in this case. I was very well informed at that time with the customers, with their leads and loads that were fed from the Butte steam plant. I was familiar with the load which was used by the AVestern Lumber Works on and before August 5, 1907. It was taking practically nothing at that time. I am familiar with the current which was going to the Crescent Creamery; it was in the neighborhood of 1 ampere; the Home Baking Company was taking about 1 ampere; the current which was being fed to the Western Iron Works was about 5 to 10 amperes. About 10 amperes I will say from my knowledge and experience would be down at the junction pole at the Western Iron Works. The amperes which
The foregoing is by no means all the evidence, but it is sufficient to illustrate the situation as presented to this court.
1. Appellants contend that the evidence shows, as a matter of law, that plaintiff was guilty of contributory negligence. On the part of the respondent it is urged that there is no sufficient plea of such a defense. The latter question might be disposed of by saying that it was not raised in the court below. However, as there must be a new trial, we think this court should express its views on the subject.
It has long been settled law in this state that the presence of contributory negligence is a matter of affirmative defense. (Schroder v. Montana Iron Works, 38 Mont. 474, 100 Pac. 619.) This being so, it follows that contributory negligence should be pleaded with the same degree of particularity as is required of the plaintiff in pleading negligence on the part of the defendant. The manner of doing so was discussed at length by this court in the case of Pullen v. City of Butte, 38 Mont. 194, 99 Pac. 290, 21 L. R. A., n. s., 42. (See Phillips on Code Pleading, sec. 503.) The same reasoning applies to the plea of assumption of risk. We are of opinion that the facts in the case would not warrant the court in deciding, as a matter of law, that plaintiff was guilty of contributory negligence.
Again, it is said that the defendants’ witnesses supplied testimony showing that the entire load of electricity leaving the steam plant to supply the Rarus and Leonard mines and other works could, under certain conditions, escape into the wire leading to the fuse-box. Counsel for the respondent emphatically declare this to be the fact, while appellants’ counsel, with equal emphasis and certainty of expression, has informed the court that it is not true. Both claim to base their conclusions upon the evidence. We are unable to determine which is correct. The evidence is too meager to enable us to form a conclusion.
Counsel also disagree as to whether the evidence shows that the pole upon which plaintiff was engaged was at the junction of the “main feeder” supplying the Rarus and Leonard mines and the line running directly to the Western Iron Works, or whether it was at a point beyond that at which the current left the “main feeder” to go to the mines. And there are many minor differences of opinion, all of which are important. In an ordinary case we could probably determine, with more or less certainty, what the testimony disclosed. But in this case we are unable to do so, and are therefore forced to the opinion that the verdict of the jury was a mere guess. If we cannot understand the evidence, with the able assistance afforded by counsel, it seems fair to say that the jury could not have done so. We do not intend to reflect on our own intelligence or that of the jury. The evidence is simply insufficient to warrant the drawing of logical conclusions. We have no doubt that upon a retrial experts can explain away the difficulties now surrounding the case. Special questions should be submitted to the jury, to the end that the facts may be definitely settled before judgment is entered.
Reversed and remanded.