194 Ky. 294 | Ky. Ct. App. | 1922
Opinion op the Court by
Affirming.
In July, 1920, Arthur McMurtry, a young mian about twenty-five years of age and in the employ of a telephone company as lineman, was killed while in the- line of his duty by coming in contact with a live wire of the utilities company carrying heavy voltage of electricity. His wife qualified as administratrix and brought this action in the Hardin circuit court against the utilities company to recover $30,000.00 damages for his death. A trial resulted in a verdict for the company, and from a judgment entered in conformity with said verdict the administratrix appeals.
McMurtry had been engaged as lineman by different telephone companies for about eight years before his death and was, therefore, an experienced lineman. He had charge of a -small crew of men on the day of the accident erecting a telephone line in Elizabethtown. To complete the line it was necessary to cross at right angles over the lines of the utilities company, and McMurtry and his crew were attempting to erect a guard wire over the power company’s wires as a support and protection to keep the telephone wires from sagging on to the power wires of appellee company. In doing this McMurtry had climbed one of the light poles and attached the wire to
There was an arrangement or practice by the utilities company and the telephone company for which MeMurtry worked whereby each of said -companies, without specific consent of the other, would erect and maintain upon the other’s poles in the city of Elizabethtown, wires to be used in the erector’s business, the only reservation being" that in case the wires erected by one of the concerns upon the poles of the other were an inconvenience or obstruction to its business or plans the erector would remove the wires from the poles of the other company upon that company’s request. Under this arrangement the deceased, MeMurtry, was proceeding when he climbed the pole, on which he met his death.
It is in evidence that properly insulated wires of the character and voltage of the ones under consideration are not dangerous to persons working near them, and that had these wires been properly insulated MeMurtry would not have lost his life by coming in contact with them, and this is the basis -of appellant’s claim of action
Under the practice existing between the utilities company and the telephone company by which each erected lines upon the other’s poles at will, it must be held that the agents and servants of the telephone company, including McMurtry, had a right to go upon the poles of the utilities company, and that McMurtry at the time of his death was at a place he had a right to be, and at which it was the duty of the utilities company, its agents and servants, in the exercise of reasonable care, to have anticipated that he would be. It was, therefore, the duty of the utilities company at that time to exercise the highest degree of care known and used by persons engaged in the same character of business to have and maintain its high voltage wires in safe condition, and to keep said wires perfectly insulated at or near its poles where, in the exercise of ordinary care, the presence of the telephone employes in the discharge of their duties was reasonably to be anticipated. ■ Common prudence dictates that in the manufacture, sale and distribution of electricity the high
The administratrix of McMurtry was entitled to have ' a recovery for the death of her intestate unless the negligence of McMurtry, at the time and place of his injury and death, so contributed thereto that but for his negligence he would not have been electrocuted; differently stated, if the deceased McMurtry, before he went on the-electric light pole, saw and knew that the high voltage wires of the utilities company were uninsulated and naked, and that if he came in contact with one of those live wires he would be injured, if not killed, and that with such knowledge and realization of danger he undertook to reach over or around the uninsulated high voltage, wires of the utilities company, and in doing so unintentionally came in contact with a naked, live wire and was electrocuted, his death must be held to be the result of Ms own negligence, or of the risk he assumed in going into and among live, uninsulated wires.
It is insisted by appellant that the trial court erred in several respects in its instructions to the jury. In substance the court said to the jury: If you believe from the evidence that the plaintiff’s decedent, Arthur McMurtry, was, at the time and on the occasion mentioned in the evidence, at a place on the light pole of the utilities company where the said company’s agents in charge of its business might reasonably have anticipated McMurtry to be, in the performance of his duties as lineman for the telephone company, under the practice or arrangement existing between the telephone company and the utilities company, then it was the duty of the utilities company at said place to use the highest degree -of care and skill known, which may be used under the same or similar circumstances to so insulate and protect its wires as to make them free from danger to those who might be brought into contact with them, and if the jury shall further believe from the evidence that the said company failed to so insulate or protect the wire or wires with which plaintiff’s decedent came in contact, and that his injuries were caused as the direct result of such fail
The first instruction is further criticised by appellant in that part which relates to contributory negligence and reads as follows:
“Unless they further believe from the evidence that in receiving his'injuries which produced his death, the decedent was himself negligent, and that his negligence contributed to his injury and death to such an extent that*299 but for it he would not have been injured, in which event the jury should find for the defendant.”
It is said that this instruction should have contained after the word “negligence” the expression “if any there was on his part,” so that when those words are supplied it would read: Unless the jury further believe from the evidence that in receiving’ his injuries which produced his death, the decedent was himself negligent, and_ that his negligence, if any there was .on his part, contributed to his injury and death, etc. To have added in these words' would have made the instruction conform more nearly to the instruction usually given by courts under facts like these. But the error was not prejudicial.
The court defined the word “negligence,” as used in its instructions, to mean the failure to exercise ordinary care, and further told the jury that ‘ordinary care means that degree of care ordinarily exercised' by reasonably prudent persons under like or similar circumstances to those proven in the case. Appellant complains that this instruction should not have been given because it could have related only to the neglig’ence, if any, of decedent McMurtry. And it is insisted that a definition of negligence as applied to the appellee company should have been given by the trial court. While there is no specific definition of negligence as applied to the utilities company, the court told the jury the degree of care which the company was required to exercise in the conduct of its business for the protection of others, and especially for the protection of McMurtry as a lineman of the telephone company in going upon the utilities company’s poles. This was all that was necessary on this subject for the guidance of the jury.
The trial court very prudently submitted the case to the jury over the protest of appellee company. The company insisted that the decedent, McMurtry, was guilty of such contributory negligence as would, as a matter of law, preclude a recovery by his administratrix, and for this insistence there is much good reason. There is no evidence contradicting that given by the witnesses, both for the plaintiff and defendant, in effect that McMurtry saw and knew of the naked and uninsulated condition of the high voltage wires on the pole of the appellee company on which he came to his death, and with this knowledge, and over the protest and importunities of the members of his crew, and in disregard of the open and obvious danger from the live wires, went into them and undertook
Judgment affirmed.