188 Ky. 725 | Ky. Ct. App. | 1920
Opinion op the Court by
Affirming.
The negligence with which plaintiff charged the.defendant company, and which he relied upon as the proximate cause of his injury, rests upon the averment that he was in a place at the time of his injuries where he had a right and which it was his duty to he, and where the defendant was required to anticipate his presence, and that it had negligently strung and maintained its wires, which were charged with an electric current calculated to produce death by coming in contact with them, in dangerous proximity to the pole of the telephone company, where defendant knew it was. his duty to be and to go, and that it negligently transmitted a large electrical current over the wires which were insufficiently insulated at such a place, and on account of the proximity of the wires to the pole of the telephone company and their insufficiently insulated condition, it rendered the-place hazardous and dangerous, and resulted in his injuries, when he was exercising ordinary care for his safety and while the defendant company knew or would have known, by exercising the commensurate' degree of care required, of the dangerous manner in which the wires were maintained and the insufficiency of their insulation. He did not know that the wires were charged with a high or dangerous current of electricity, or were insufficiently insulated.
The defendant company denied all the averments of plaintiff’s petition, and in addition thereto pleaded that his injuries were caused by his contributory negligence. It, also, pleaded that after the injuries were sustained by plaintiff, he made a claim against the Home Telephone Company to the effect, that his injuries were caused by the negligent failure of the telephone company to provide him a reasonably safe place in which to work and in compromise and satisfaction of the claim, the telephone company had paid the plaintiff a sum of money, and that he executed a writing to the telephone company acknowledging the receipt of the money in satisfaction of his claim, and releasing it from further liability.
By reply the plaintiff traversed the allegations of the answer and pleaded, that, it was true, he had made a settlement with the Home Telephone Company and received from it $750.00 in part satisfaction, only, of his cause of action and the damages suffered by him, but in
(a) The plaintiff was permitted, over the objection of the defendant, to prove by various witnesses, who are experts in construction of the necessary facilities of electrical companies, that it was practical for the defendant to have placed a cross-arm upon the telephone pole, and attached its wires thereto, find thus, have removed the wires to such a distance from the pole as to reduce the danger of one coming in contact with them, in ascending or descending the pole, to a minimum. The defendant now insists that the admission of the testimony was erroneous and prejudicial to its rights for two reasons. First, the poles of defendant were placed in their positions upon the street and the wires strung upon them several years'before the poles of the telephone company were erected and the telephone company was thus necessarily the cause of the proximity of the wires of the defendant to the pole. Second, that the failure to fix a cross-arm and suspend the wires to it was not an act of negligence, which was eompjained of in the petition Touching the first ground of objection to the competency of the testimony, it should be observed that a contract between the defendant and the telephone company was introduced in evidence, the obligations of which were not denied by the defendant, and by which the two companies had agreed that the defendant could place upon the telephone company’s poles such attachments as it might desire to use in connection with properly constructed metallic circuits, for the distribution and transmission of electricity, and the telephone company could place upon the poles of defendant such attachments as it might desire for furnishing telegraphic or telephonic communications. The evidence does show that the poles of the defendant were occupying the street before those of the telephone company were erected, but it does hot show, that the wires of the defendant, which were upon the property side of the telephone pole, were strung before or after the erection of the telephone pole. From the facts proven, it may, also, be inferred, that the defendant placed the bracket upon the telephone pole and attached thereto the wires which are complained of.
The introduction of testimony conducing to show the dangerous proximity of the wire to the poles, and on that account calculated to injure one ascending the pole, and that it was practical to remove the wire from dangerous proximity to the pole, by attaching it to an arm in the usual way that arms are placed upon the poles, and the wires of the company attached thereto, was not incompetent evidence under the averments in the petition, nor violative of the rule which holds that when special acts of negligence are averred that the evidence must be confined to such acts of negligence as are declared. The allegations of the petition, in' the
(b) A motion by the defendant for a directed verdict in its favor was properly overruled. The grounds upon which it insisted that it should have been given are:
(1) The evidence did not tend to prove that plaintiff received an electric shock at all, but that he fell from the pole by mere accident.
(2) The manner in which plaintiff claimed that he received his injuries was a physical impossibility and contrary to natural laws of which the court should take judicial notice.
(3) The undisputed evidence proves that the negligence of plaintiff so far contributed to the cause of his injuries, but for it the injuries would not have been received.
(a-1) In corroboration of the testimony given by the plaintiff, that he received an electrical shock, which caused the burn upon the top of his left foot, and upon the ends of the fingers of his right hand, and that such shock caused him to fall, others deposed to the fact of the apparent burn upon his foot and fingers shortly after it was said to have occurred, and another deposed to his fall from the pole to the sidewalk. The fact that his shoe nor .sock, nor the glove upon his hand, if he had one, were not produced, while it tended to, did not prove that the burns were not upon his person as he claimed and the truth of the matter was one for the jnry.
(b-2) The defendant insists that the manner in which plaintiff deposed that his injuries occurred was a physical impossibility, in this, that standing with his left foot upon the stirrup about six inches' beneath the defendant’s wire, and with his right foot upon the stirrup upon the other side of. the pole, eighteen inches higher up on the pole, and his left hand resting upon the stirrup upon the same side of the pole, but thirty-six inches above the stirrup upon which his left foot rested, that it was a physical impossibility and contrary to the physical laws of nature for him to have elevated his left foot from the stirrup so as to come in contact with defendant’s wire, until he could have seized something in his right hand with which, to assist in elevating his body. The plaintiff’s testimony, however, was that he did so perform, and that he did the very thing which the appellant insists that the court should judicially know was an im
(c-3) While, if the facts upon which a charge of contributory negligence is based are conceded or proven by undisputed testimony and the inferences which can be drawn from undisputed facts, are such as. about which ordinarily intelligent men do not differ, the question of contributory negligence becomes one of law for the court, but such a question is nearly always one for the jury. Conway v. L. & N. R. R. Co., 135 Ky. 229; Lewis v. Bowling Green Gas Light Co., 135 Ky. 611. Although the facts are undisputed if the conclusions which can be drawn from them are such that ordinarily reasonable men will differ as to whether the conduct of one was that of an ordinarily prudent man, the question remains' qne for the decision of the jury. Long v. L. & N. R. R. Co., 128 Ky. 26; L. & N. R. R. Co. v. Keifer, 132 Ky. 419; C. N. O. & T. P. Ry. Co. v. Harrod, 132 Ky. 445; Ky. Distilleries Co. v. Schrieber, 24 R. 2236; Passamaneck’s Admr. v. Louisville Ry. Co., 98 Ky. 195. It is conceded that plaintiff was an experienced telephone lineman and that he knew, that, if he permitted a portion of his body to come in contact with a “grounded wire,” and at the same time allow another portion of his body to come in contact with a wire charged with a high current of electricity, that there was danger of an electric current setting up through his body, and defendant insists for such reason it was entitled to have a verdict directed for it upon the ground that plaintiff negligently permitted
(c) The defendant insists that the court erred to its prejudice in refusing two instructions to the jury in which was set out in concrete form a portion of the facts upon which' it based its defense of contributory negligence upon the part of the plaintiff, with directions, that, if the jury found such facts to exist, from the evidence, to find for the defendant, and instead gave to the jury an instruction in the general terms usually made use of, where the defense of contributory negligence is relied upon. No objection is made to the -instruction given upon that subject, except that it was not in sufficiently concrete- form, and it may be added that another instruction, designated the 5th, which was offered by defendant, contained in substance the instruction to the jury in the same form, in which, they are set out in the instruction given by, .the court. The two instructions offered w;ere properly refused, because they assumed facts to exist, the truth of which'.was in issue, and from which the instruction, as- a matter of law, directed the jury to find that-the plaintiff was contributorily negligent. If the instructions, upon-contributory negligence should, have been given in concrete form — that is to have,set out in the .instructions the facts constituting- it as shown by the evidence — and if the ones offered were not technically correct, it.follows, of course, that, it would have become the -duty of the court to have' prepared correct instructions in such concrete form, and given them to the jury. L. & N. R. R. Co. v. Harrod, 115 Ky. 877; L. & N. R. R. Co. v. King, 131 Ky. 356; West Kentucky Coal Co, v. Davis, 138 Ky. 667; Lewis, et al. v. Hicks, et al., 144 Ky. 711. While, as was . said in Stearns Coal & Lumber Co. v. Williams, 171 Ky. 46, the rule is now.established in this state, to give instructions presenting,
(d) The defendant did not anywhere allege that any negligence,' either sole or concurring, of the Home Telephone Company, was a cause of the plaintiff’s injuries. It does aver that plaintiff made a claim for damages against the telephone company upon the ground that it had negligently failed to provide him a safe place in which to work and which was a cause of the injury, and that by a compromise of the claim the plaintiff received from the telephone company the sum of $750.00. All of this the plaintiff admits, and no issue Jis made thereon in the pleadings. The plaintiff, howevér, alleged that the settlement was made and money received as a partial satisfaction, only, of his claim for damages, and not in satisfaction of his entire cause of action. This is admitted by defendant in its amended answer. Hence,
The judgment is therefore affirmed.