113 Tenn. 83 | Tenn. | 1904
delivered tlie opinion of the Court.
The evidence in this case tends very strongly to show that the horse of defendant in error was killed by an electric shock, while standing hitched to a post in front of the business house of one Roberts in Memphis. This post supported an illuminated.sign, used by Roberts to advertise his business. The sign was lighted by electricity, which passed to it through wires which were in-cased in a lead pipe. These wires were an extension of those in Roberts’ house.
The testimony tended also to show that through some defect in construction, or from a lack of perfect insulation, of these wires, electricity escaped from them, and was communicated to the horse, through the chain which held him, in sufficient quantity to cause his death. The contention of the plaintiff in error was that, even if this were true, yet it was in no way responsible. To make good this contention, it offered testimony to show that all the wiring about the premises of Roberts was done under his order; that the wires were his property and under his exclusive control; that under an ordinance of the city of Memphis it made a connection with these wires only after an inspection of them by the electrician and the board of underwriters of the city of Memphis, and a certificate from both that they were in good condition to receive the current; and that the sole relation which it had to these wires was to furnish the electricity and receive payment for it. This testimony was excluded by the trial judge, and when he came to charge the jury he said to them, in substance, that if they found that the horse was killed by electricity furnished to Roberts by plaintiff in error over a defective wire, then they should find for plaintiff.
In both respects there was error. If it be true that
Gas, used for illuminating purposes, uncontrolled, is also a dangerous agency; yet it would hardly be insisted that a company which made and furnished it to the pipes of a customer on his own premises would be liable for the asphyxiation of this ’ customer, or of a stranger, his guest, caused by a leakage from these pipes. Or, changing the illustration, should there he so violent an explosion of the gas accumulated from the leak, that the house of his neighbor, who has no interest in or control over them, was injured; could it be said the company furnishing the gas was liable to either, for his loss? We take it that the law reports may be searched in vain for a casé where a gas company had been held liable under such conditions, or for a sound rule of law which would sanction placing such liability on the company.
We understand that liability for an injury occasioned through such a defect depends upon the interest in or control over the appliance in which the defect exists,
The circuit judge, in excluding the testimony as to the ownership and control Of the defective wires by another than the plaintiff in error, as well as in his charge, was controlled by thé case of Maysville Gas Co. v. Thomas’ Adm’r (Ky.), 75 S. W., 1129. While the opinions of that court are entitled to the highest respect yet we are not able to coincide with its reasoning in that case. The sounder view, we think, is that of the court of appeals of Colorado, as expressed in National Fire Ins. Co. v. Denver Gas & Electric Co., 63 Pac., 949.
In each of these cases, the company furnishing the electric current had no interest in or dominion over the wires, the defect in which permitted the current to escape, so as to inflict the injury complained of. In the Kentucky case the court rested its conclusion upon the dangerous nature of the agency supplied. “Consider
Pressed to its legitimate conclusion, we think this argument would make an electric or a. gas company an insurer against defects in appliances over which they had no control, and, to avoid liability, would impose upon them the duty of continued inspection of the wires and pipes of every customer supplied with their products. This would be a burden which no such company could bear and live; and it also would he a source of annoyance to its customers, which they would not long submit to.
We prefer to place this court in line with that of Colorado, which holds that there is no liability when there is no control over the wires and no knowledge of the defect which was the, occasion of the injury.
Judgment reversed, and cause remanded.