122 Iowa 611 | Iowa | 1904
The dominant question in this case is whether the plaintiff has proven such negligence on the part of the defendant as' will entitle her to recover for the death of
After the death of Martinek, the light and power company examined and tested the primary and secondary circuits, and found the converter in such condition that the one thousand volts of' the primary wires had passed to the secondary wires of the circuit, and it is therefore beyond dispute that this powerful current passed through the body of Martinek. íhere was no danger to life in the current of one hundréd volts which the secondary wires carried to the consumer, but this is not of great importance here, for, as we have seen, Martinek received and was killed by the current from the primary wires passing through the defective or broken-down converter to the secondary wires.
Upon the trial the plaintiff, over the defendant’s objections, attempted -to prove acts of negligence on the part of the defendant not pleaded. These matters we shall consider later, and-now consider those which were pleaded. There is no evidence tending to support the charges of negligence in stapling the wire on the outside of the car, or in passing it over the iron hooks on the inside thereof. The evidence shows, however, that the insulation was worn off of the wire where it passed through the car door, and that it was there stapled to the frame of the car, but it is not claimed that the deceased was in contact with the wire at this point. The evidence tends to prove, however, that the wires may have been partially grounded by reason of this open contact with the car, but, if that were true, it is unquestionably true also that such grounding of the wires would afford a path to the ground for any current of electricity passing through them,
The negligence alleged is not providing proper appliances for arresting lightning is entirely without proof in its support. There had been an electrical storm that morning an
Though not alleged as grounds of negligence, the plaintiff was permitted to offer evidence to the effect that it was dangerous to use a brass socket at the end of the wires, and dangerous to use a wire screen over the lamp. This testimony was improperly admitted under the issues, as we have already seen, but, notwithstanding this, we will consider it as properly in the case for ’the purpose of making final disposition thereof. The superintendent of the light and power company testified for the plaintiff that it was dangerous to use a brass socket without insulation, and that if a porcelain socket had beeen used in place thereof one thousand volts of electricity would not have produced death. This testimony is entirely unsupported by the testimony of other witnesses, and is in fact contradicted by all of the experts who testified touching the matter, including those used by the plaintiff. It is said, however, that because he so testified the question was for the jury, and that its finding should not be disturbed. It is not true, however, that because there is testimony on a given ponit it must go unchallenged. This witness stated that he did not pretend to be an expert electrician, and his entire testimony on the subject of electricity conclusively demonstrates that he is not an expert, and that he in no measure underestimated his knowledge of the subject. In addition to this, it is undisputed that there were four or five other
But aside from this it was not negligence for the defendant tó use a brass socket. They were then in universal use on secondary circuits, not only in Cedar Bapids, but everywhere, and were then and are now considered absolutely safe so far as danger to life is concerned. The fact that .they will not resist a current of one thousand volts is not proof of negligence, for the defendant only contracted for a safe commercial current of electricity, and was bound only to supply proper appliances for its safe use. We are constrained to hold that the evidence on this branch of the case is wholly insufficient to support the verdict.
Testimony was also erroneously received that a horseshoe hung over the wires leading out of the defendant’s office on the morning in question, and that its position, if it was in
The plaintiff seems to have thrown out a dragnet hoping to prove some act of negligence on the part of the defendant which would bring her a verdict. She succeeded in getting the verdict, but a very careful examination of the record convinces us that no negligence on the part of the defendant was proven, and that the verdict is wrong.
But little need be said regarding the other errors argued. The testimony of the witness Fawcett was incompetent because he was admittedly not an expert. It was also error to admit testimony foreign to the issues presented by the pleadings, and much'Such testimony was received.
The eighth instruction was the law of the case, whether right or wrong, and should have been followed by the jury, and a verdict returned thereunder for the defendant.
Instruction 10 asked by the defendant should have been given. It told the jury that if a verdict was found against the defendant it could not recover the amount from the light and power company.
The jury should have been instructed to find for the defendant on the whole case. It is unnecessary to mention other errors. For those pointed out, the judgment is REVERSED.