79 Neb. 387 | Neb. | 1907
Lead Opinion
Dundee is a village situate immediately west of the city of Omaha. Forty-Ninth street runs north and south through the village, intersecting Davenport street at right angles. The wires of the Omaha Electric Light & Power Company extend along the east side of Forty-Ninth street. There were two wires, a primary or high potential wire carrying 2,300 volts of electricity, and a secondary or low potential wire carrying 106 volts. The high potential wires were on four-pin arms near the top of the poles, and the low potential Avires on tAVO-pin arms about 26 inches lower down. The poles Avere placed so that wires passed through the crown of trees along Forty-Ninth street. At Forty-Ninth and Davenport streets the power company constructed a transformer, and strung a secondary ware from the transformer east along Davenport street to the residence of W. L. Selby. In this manner the company supplied Selby with electricity. Selby’s yard, as Avell as his residence, had been wired and was provided with electric, lights. These lights were connected Avith those in the house and controlled by switches in the dwelling. August 29, 1904, about, 7:30 A. M., Selby observed a disturbance among the wires in his yard, and noticed that the trees to which the wires were attached Avere smoking and sparks were flying from the fixtures. He requested his son, Frank Selby, to go to the switch in the cellar and cut the current. Frank .proceeded to the cellar, but could not see the switch. Thereupon he attempted to turn on an incandescent light. The instant he took hold of the button he received a severe electric shock. After Mr. Selby learned of the accident to his son, he telephoned Wesley Morrison, an independent electrician who had wired the yard, and also called up the company, and notified it that the trees were burning in the yard, and that his son had sustained a shock. Upon receiving this report, George Keebler, as foreman of the power company, directed James O, Grimm, one of the defendant
The plaintiff, Laura W. Grimm, as administratrix, sued the power company and recovered $5,000 damages for the death of her husband, James O. Grimm. The negligence relied upon is that the poAver company negligently and carelessly constructed the electric wiring leading to the residence of W. L. Selby so that the high potential wires and the low potential wires ran along so close together that they became at times crossed, and negligently ran
1. We think the company was negligent in placing its wires through the branches of trees along Forty-Ninth street so that high potential wires were within 26 inches of low potential wires. The evidence shows without contradiction that proper construction requires such wires to be at least five feet apart, and, even when so placed, should not be permitted to pass through the branches of trees, thereby endangering contact. The negligence of the company was clearly established by undisputed evidence, and the court should have instructed the jury to that effect. Hence, assigned errors in submitting the question to the jury will not be considered.
2. It cannot be said as a matter of law that plaintiff’s intestate was working outside of his employment at the time of the fatal shock. Grimm, under the directions of Keebler, his line foreman, performed what is called “outside work,” while the “inside work” was in charge of another foreman and different employees. Selby notified the company that the trees in his yard were smoking, and that his son had received a shock. The jury were justified in finding that the company knew that there was “inside” as well as “outside” trouble. Grimm was told by his foreman that the information had been received from 4808 Davenport street — Selby’s residence. Grimm was sent
3. Defendant’s third contention is that the accident resulting in Grimm’s death was one of the ordinary risks incident to his employment. A servant by his contract of employment assumes the ordinary risks and dangers incident thereto. Missouri P. R. Co. v. Baxter, 42 Neb. 793; Dehning v. Detroit Bridge & Iron Works, 46 Neb. 556. He assumes risks arising from defective appliances used, when such risks are known to him or are apparent and obvious to persons of his,experience and understanding. Union Stock Yards Co. v. Goodwin, 57 Neb. 138. A servant, however, does not assume the risk arising from his master’s negligence. Chicago, R. I. & P. R. Co. v. McCarty, 49 Neb. 475.
Did the fatal accident fall within the ordinary and usual hazards of the business in which Grimm was engaged? Whether it did, we think, is a question for the
4. It cannot be said that plaintiff’s intestate was guilty of contributory negligence as a matter of law. It is true, he took hold of the light without insulating himself, and with knowledge that young Selby liad sustained a shock; but he could not presume that the company had negligently charged the fixture with 2,300 volts of electricity. The city electrician testified that one would conclude that young Selby would have been instantly killed had the' fixture been charged with the dangerous current. This, together with the fact, as shown by the record, that it is not unusual for boys and women with soft hands to receive severe shocks from the ordinary current in incandescent lamps, might have led Grimm, or any other prudent man, for that matter, to presume that no serious harm would result from contact with a fixture which is ordinarily free from dangerous currents.
Where a young man 21 years of age, and an electrician, had seen the proprietor of a cafe attempt to turn out the electric lights on a chandelier, and, after seeing him draw back on account of a shock received, attempted to turn out the lights, and received a shock from which he died, it was held, in Predmore v. Consumers L. & P. Co., 99 App. Div. (N. Y.) 551, that the question of his contributory negligence was for the jury. The court said that it was true he had seen the proprietor draw back on account of the shock received, but that, on the other hand, it was to be observed that he must have noticed that this shock had not produced any serious effects, and it could not be held, as a matter of law, that he was at fault for supposing that he could turn out the light himself without risk of fatal injury.
In an action for deáth caused by an electric current from wires used in lighting a house, where the usual voltage was less than enough to be dangerous to life, whether the deceased was guilty of contributory negligence in handling the wire was a question for the jury.
Under the rule announced in the foregoing authorities, we think the question of contributory negligence of the deceased was for the jury. It is argued, however, by counsel for the power company that deceased was instructed by his foreman that the dangerous condition in Selby’s residence was probably due to contact of primary and secondary wires in the trees on Forty-Ninth street, and hence he was guilty of negligence in taking hold of !he light with knowledge of this fact. The conversation with deceased before he started for Dundee, as testified to by the foreman of the company, was admitted over plaintiff’s objection. The competency of this testimony is challenged. However, if properly admitted, the record is still silent on one point. It does not disclose what examination Grimm made of the wires along Forty-Ninth street to discover a cross before proceeding to the residence of W. L. Selby. The city electrician, a man of considerable experience, testified that the trees were so thick along Forty-Ninth street that he could barely see the crossed wires. For all that this record discloses Grimm had made a careful examination along Forty-Ninth street, and failed to discover the wires which could barely be seen among the branches of the trees. The burden was on the company to prove that he did not make such examination before appearing at the Selby residence. This it failed to do, and the jury were justified in finding that Grimm had no knowledge of the deadly current in the residence.
We do not think the learned trial court was in error in submitting this case to the jury, and therefore recommend an affirmance of the judgment.
By the Court: For the reasons stated in the foregoing opinion, the judgment of the district court is
Affirmed.
Rehearing
A rehearing has been granted, and the case reargued, and again submitted. The first and second divisions of our former opinion, ante, p. 387, are not assailed. We have considered further the questions of assumed risk and contributory negligence in the light of additional adjudications called to our attention by appellant’s able counsel. Did the fatal accident fall within the usual hazards of the business in which Grimm was engaged? We confess that the case is not free from difficulty, and that the question involved is a close one. On first impression, one is inclined to think that deceased assumed the risk and that his administratrix cannot recover; but, upon mature reflection, the view taken by the learned trial court seems more just and reasonable, and leads one to conclude, whatever may be his views if acting as a trier of fact, that there is a reasonable probability of different minds reaching different conclusions on the question of assumed risk, and hence its determination should be left, where the district court placed it, with the jury. At any
There is another presumption which must be given weight. The record is silent as to the conduct of the deceased from the time he left the defendant’s place of business until he arrived at Selby’s residence, where the accident occurred. “The instinct of self-preservation and the disposition of men to avoid personal harm reinforce an inference that a person killed or injured was in the exercise of ordinary care.” 16 Cyc. 1057, note 49; Baltimore & P. R. Co. v. Landrigan, 191 U. S. 461; Kansas City-Leavenworth R. Co. v. Gallagher, 68 Kan. 424, 64 L. R. A. 344; Hendrickson v. Great Northern R. Co., 49 Minn. 245; Northern P. R. Co. v. Spike, 121 Fed. 44. In the case last cited, Caldwell, Circuit Judge, said: “The presumption arising from this natural instinct of self-preservation stands in the place of positive evidence, and is sufficient to warrant a recovery, in the absence of countervailing testimony. * * * Nor is this presumption applied only when no one witnesses the accident. It has its application in all cases, and may be strong enough to overcome the testimony of an eye-witness. * * * This principle has been repeatedly affirmed and applied by the supreme court of the United States.”
Another inquiry is: Upon whom is the burden of proving that Grimm assumed the risk of the a'ccident which resulted in his death? We think the weight of authority is that the burden of sustaining this defense is upon the defendant. Dowd v. New York, O. & W. R. Co., 170 N. Y. 459; Calloway v. Agar Packing Co., 129 Ia. 1; Arenschield v. Chicago, R. I. & P. R. Co., 128 Ia. 677; Mace v. Boedker & Co., 127 Ia. 721; Nadau v. White River Lumber Co., 76 Wis. 120; Norfolk & W. R. Co. v. Ward, 90 Va. 687, 19 S. E. 849; Missouri, K. & T. R. Co. v. Jones, 35 Tex. Civ. App. 584, 80 S. W. 852; McDonald v. Champion Iron & Steel Co., 140 Mich. 401; Judd v. Chesapeake & O. R. Co., 18 Ky. Law Rep. 747, 37 S. W. 842; Jackson Lumber Co. v. Cunningham, 141 Ala. 206, 37 So. 445.
However, if plaintiff’s decedent knew that the wires on Forty-Ninth street were in contact, and with this knowledge attempted to turn on the light in Selby’s residence, we can see how it could be held that he assumed the risk. The question of the assumption of risk generally turns upon the actual or constructive knoAvledge of the deceased of the dangers at the time of the injury. “The doctrine of the assumption of risk is wholly dependent upon the servant’s knowledge, actual or constructive, of the dangers incident to his employment. Where he knows, or in the exercise of reasonable and ordinary care should, know, the risks to which he is exposed, he will, as a rule, be held to
Noav, the burden of proving that Grimm had knoAvledge, or should have knoAvn, of the risks to which he was exposed, rested upon the defendant company. There is no proof, and the record is silent, as to the conduct of the deceased immediately prior to his appearance at the Selby residence on the morning in question. If we take as true the foreman’s version of the conversation that he informed deceased that the disturbance Avas due to crossed wires on Forty-Ninth street, still the record does not disclose AAdiat examination Grimm made of the wires along Forty-Ninth street to discover a cross before proceeding to Selby’s residence. The city electrician, a man of considerable experience, made an examination of the Avires along Forty-Ninth street after Grimm was killed, and testified that he could barely see the crossed Avires among the branches of the trees. For all that the evidence discloses, Grimm may have made an examination of the wires on Forty-Ninth street, and failed, in the exercise of due care, to discoArer the crossed Avires, Avhich could barely be seen among the branches of the trees. If Grimm had been informed of the contact of the Avires, he certainly had the highest motives for making such an examination, for his life depended upon such caution being taken. The company did not prove that he failed to make such an examination, or was aware of the crossed wires, or did not use ordinary care to discover them. In view of the natural instinct of self-preservation and the disposition of men to avoid personal harm, the jury were justified in presuming that plaintiff’s intestate Avas in the exercise of ordinary care, and had made a prudent examination of the Avires on Forty-Ninth street, and failed to discover the Avires in contact among the branches of the trees. If this
Another view of the evidence, one very unfavorable to defendant, may.be reasonably taken. Defendant’s foreman testified, as stated in our former opinion, that he told Grimm “that in all probability there was a cross between the primary and secondary wires on Forty-Ninth-street, that he should look carefully along Forty-Ninth street as the trees were pretty thick there, and that the trouble in all probability would be found at that point.” No living person can either corroborate or refute the foreman’s testimony as to this conversation. If, as this witness testified, he knew that the high and low potential wires were in contact, ordinary prudence would dictate that he should have informed not only Grimm, but, further, that he should have warned the Selby family, or immediately cut off the death dealing current, not necessarily for the protection of Grimm, but for the protection of the company’s patrons and the public generally. It would not be an unreasonable inference for the jury to draw from the evidence that defendant’s foreman never instructed Grimm as he said he did, but sent him forth on his fatal mission without warning, and to deal with dangers he never assumed. Morrison, an electrician with greater experience than Grimm, was fully conversant with all the facts communicated to defendant by the Selbys, and not until Grimm’s death did he think that the disturbance was caused by contact of the high and low potential wires. We also have the testimony of Mr. Michaelson, a fair witness, and an experienced electrician, to the effect that knowledge of the shock to the Selby boy would not indi
Our attention is called to cases which, it is claimed, are in conflict with the conclusion we have reached. The principal authority cited is Bell Telephone Co. v. Detharding, 148 Fed. 371, wherein it was held: “Plaintiff’s intestate was employed by defendant telephone company as a ‘trouble finder,’ and was sent by his superior, in the line of his duty, to ascertain the cause of the failure of a telephone to work properly, -which was unknown. In climbing a cable pole his hand came in contact with a guy wire, from which he received an electric shock, which caused him to fall, and he was killed. From the effects of a storm on the previous night, or from some other cause not shown, the telephone wires leading from the pole had sagged across electric light wires, and had become heavily charged with electricity, and also charged the guy wire. Held, That the risk from such danger was one known to and assumed by plaintiff’s intestate as one necessarily incidental to his employment, and that there could he no •recovery from the defendant for his death.” This case, at first thought, would seem decisive of the one in hand; but, when we bear in mind that in the case cited there was, as expressly stated by the court, no “lack of diligence on the part of the defendant below shown,” and apply the rule established in this state that “a servant generally does not assume the risk of dangers due to his master’s negligence” (Chicago, R. I. & P. R. Co. v. McCarty, 49 Neb.
We now come to the other question presented for further discussion. It is unnecessary here to repeat what was said in the fourth division of our former opinion. Additional authorities have been cited, and examined, and are found not to require the overruling of our former pronouncement on the question of contributory negligence. This case is clearly distinguishable from cases like Citizens Telephone Co. v. Westcott, 99 S. W. (Ky.) 1153, and Johnston v. New Omaha T.-H. E. L. Co., 78 Neb. 27, and must be classed with those like Predmore v. Consumers L. & P. Co., 99 App. Div. (N. Y.), 551, and Belvidere G. & E. Co. v. Boyer, supra. In the first class the courts held, for obvious reasons, that the injured party knew of, and deliberately placed himself in, a position to receive an electric shock, and hence could not recover. In the latter class experienced electricians knew that others had received shocks from electric fixtures not resulting fatally, and after knowing the effect of contact therewith attempted to adjust the difficulty, and were killed. Such circumstances do not so clearly establish contributory negligence as to remove the question into the realm of undebatable fact and require a peremptory instruction to the jury. See authorities cited in former opinion.
In Belvidere G. & E. Co. v. Boyer, supra, the company was engaged in running an electric plant in the city of Belvidere. Deceased, a man of considerable experience with electric machinery, was its engineer and had charge of the building and the machinery and the men employed therein, and, when repairs were to be made in the room, he made them or saw that they were made. Another employee, one Tynan, received a shock from a wire on which a light was suspended. The shock rendered him unconscious for a time. Deceased said he would taire the wire
While the questions presented by the record before us are not free from difficulty, we think the facts are such that reasonable men would differ as to the proper inference to be drawn. This being true, the district court was not in error in submitting the case to the jury.
We therefore recommend that our former judgment of affirmance be adhered to.
Affirmed.