Kahn v. Kittanning Electric Light Co., 238 Pa. 70

Kahn v. Kittanning Electric Light Co.

238 Pa. 70 | Pa. | 1913

Opinion by

Mr. Justice Potter,

This was an action of trespass by Henry M. Kahn and his wife against the Kittanning Electric Light Com*73pany, to recover damages for the death of their son, alleged to have been caused by the negligence of the defendant company. On the morning of October 22, 1910, shortly before seven o’clock, the boy, who was thirteen years old, left the home of his parents to go to work. A few moments later he was found lying upon the street, suffering from a severe burn in the hand caused by coming in contact with a broken live wire belonging to defendant company. He was taken to the hospital, where tetanus subsequently developed from the injury, causing his death two weeks later. Upon the trial the court below directed a verdict for the defendant, on the ground that the evidence upon the part of plaintiffs was not sufficient to sustain a finding by the jury that the injury to the boy resulted from negligence on the part of the defendant. It was not shown what caused the break in the wire, nor did it appear how long the wire lay upon the ground after it was broken. The witness Pollock testified that the accident happened near his house; that about a quarter to seven he heard someone cry, and he went out and found the boy lying injured upon the pavement. As soon as he had taken the boy to the hospital near by, he notified the defendant company by telephone that the wire was down, and they at once sent a man to fix it. He said there had been a rain and wind storm during the night, and some electrical trouble. Our examination of the evidence leads us to the conclusion that the facts of this case do not bring it within the principle of the decision in Herron v. Pittsburgh, 204 Pa. 509, where a broken police call wire lay for several hours upon the street. In that case it was shown that the break was known to the police officials by nine o’clock in the morning, and the accident did not occur until late in the afternoon. It was held that the break in the wire was notice that it might become dangerous, and imposed upon the city the duty of prompt examination and care. So in Devlin v. Light Company, 192 Pa. 188, the live wire upon which plaintiff *74stepped had been negligently left upon the sidewalk, by defendant’s employees while they were engaged in readjusting the wires. But in the present case the evidence does not show how long the wire was broken before the accident; much less does it show that the defendant was negligent in not sooner discovering the break, or in failing to give the matter prompt attention after it did learn of its existence, and of the presence of the broken wire upon the street. In fact, counsel for plaintiffs placed but little emphasis upon this phase of the case, but sought rather to show that the method of construction of the line was faulty. His expert witness Bell suggested that the wires were too slack, and that this slackness may have become dangerous because by swaying, the wire may become crystallized at the point where it is fastened,.and may finally break at that point. But there was no evidence to show that as a matter of fact the wire did become crystallized, or that it did break at the point where it was fastened. Nor does the evidence show that the insulation was poor, at the place where the break occurred. As the trial judge said, the cause of the break in the wire was not shown by the testimony, and it was left as a mere matter of conjecture. It was not shown that the break occurred in the center of the span, or at such a distance from the pole that it must have been caused by the alleged defect of having too long a span.

In his opinion refusing the motion for a new trial in this case, the trial judge carefully analyzes the evidence, and points out clearly that the plaintiffs failed to show any specific act of negligence on the part of the defendant that can fairly be considered.as the proximate cause of the injury. As he aptly says, the statements in the declaration and in the testimony of the witnesses, were merely conclusions, and did not set forth facts which could properly be held to constitute negligence. We agree with his conclusion that the case is within the principle of the decision in Smith v. East End Electric *75Light Company, 198 Pa. 19; Aument v. Telephone Company, 28 Pa. Superior Ct. 610, and Lanning v. Pittsburgh Railways Company, 229 Pa. 575. It was there held that it was not enough to prove the mere fact of the breaking of a wire, which caused injury. The question for the jury was, “Did the negligence of the defendant company cause it to break? If this did not appear, there was no liability upon the defendant.” In the case at bar, as the evidence did not show the cause of the break in the wire, or that the company failed to remedy the trouble with due and reasonable alacrity, the trial judge was justified in withdrawing the case from the jury.

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