251 Pa. 79 | Pa. | 1915
Opinion by
Plaintiff owned and operated a weaving mill located in the Borough of Milton, and defendant furnished electric current for lighting plaintiff’s property. On January 21,1913, plaintiff’s mill and contents were destroyed by fire, caused by a short circuit at the point where defendant’s service wires passed through the outer wall of plaintiff’s building to connect with a switch box and fuse box located inside the mill. Plaintiff’s evidence tended to show that at the time of the fire the wires were attached to the building by glass insulators mounted on wooden brackets and entered the building through iron conduits, which were not fitted with porcelain tubing and one of which was without bushing at one end, to prevent the insulation on the wire from rubbing against the sharp edge of the pipe through which it passed. The conduits sloped inward instead of outward and the wires at the point where they entered the mill were without “drip loops” to prevent water from rain and snow entering the conduit and flowing into the building. As a result of such defective construction water entered the tubes or conduits, which contained wires with insulation not fitted to withstand moisture. This condition or the absence of proper insulation around the wires as they entered the conduit or the combination of both, caused a short circuit to be created, which set fire to the building and resulted in its destruction. In attempting to establish defendant’s liability by showing that it put in place the defective wiring, plaintiff called its bookkeeper as its only witness on this point; the trial judge considered the testimony of this witness so indefinite and unreliable that he refused to permit the jury to pass upon it, and sustained defendant’s motion for binding instructions. The ease thus turned upon the question whether plaintiff or defendant was responsible for
That the work of wiring the building on the inside was done by an electrician employed by plaintiff is undisputed. This workman was called as a witness on behalf of defendant and testified to inserting the conduits and wires through the wall of the building from the inside to the outside and making them ready to be connected by the electric company. He further said the conduits: were placed through the wall with a downward slant toward the outside and were lined with porcelain insulators. A witness in the employ of the predecessor in title of defendant, called by defendant, testified to connecting the company’s service main lines with the ends of the wires which extended through the wall to the outside of the building but did no work in connection with the wiring on the inside. This testimony was corroborated by another witness who assisted plaintiff’s electrician in wiring the building. The only contradictory evidence was the testimony of the bookkeeper of plaintiff who stated the wires were not extended through the wall by plaintiff’s electrician but that this work was done by employees of the electric light company when connection was made with the service wires from the outside. This witness did not testify positively to facts within his knowledge but rather to conclusions based on his recollection that no charge was made for placing the conduit and wires through the wall of the mill in the bill for materials, which came through his hands as bookkeeper. His entire testimony on this point is vague and indefinite as well as contradictory. In his direct examination the witness said he saw employees of the electric company place in position the conduits and wires which extend through the wall but on cross-examination repeatedly said he was testifying to the best of his knowledge only and avoided making positive statements. After considerable evasion of the direct question whether he actually saw
It was argued on behalf of plaintiff, however, that even if the wires were constructed by plaintiff’s workmen, defendant still owed the duty of inspection because the defect, which lay between the outside service wire and the meter which was under the direct control of defendant, although inside plaintiff’s building, was readily discoverable by proper inspection.
Although there is conflict of authority on the question of extent of duty of electric companies in regard to the safety of appliances owned and maintained by its customers, the weight of authority in other jurisdictions supports the view that the company is not bound to inspect such appliances and is not generally liable for injuries or damages caused by reason of defect therein: 7 Thompson on Negligence, White’s Supplement, Section 807; 1 Joyce Elec. Law, 2 Ed., Section 445; Curtis on Electricity, pages 417 and 492 and cases cited. The exact question appears to be without precedent in Pennsylvania. It is generally held, however, that a person or company furnishing electricity is bound to know not only the extent of the danger incident to its use but to exercise the highest degree of care practicable to avoid
Plaintiff offered evidence of custom regarding the construction of service wires which offer was rejected by the trial judge. It is contended in the 16th assignment of error plaintiff was thus prevented from fixing liability on defendant. The offer was to ask the witness “Whether it was the general custom and practice of electric light companies to make the connection and run the service wires from the line or main cable wires to the building through the wall and into the fuse box, cut out box, as some evidence to go to the jury from which they may determine under whose supervision this outside construction was.” The trial judge properly sustained an objection to this offer. The question was not what was the custom as to installing wires, but who installed the particular wires in this case. On this point there is direct and positive evidence without substantial contradiction, and proof of a custom contrary to the actual fact of the transaction would have been of no avail: Brown v. Pennsylvania Casualty Co., 207 Pa. 609. To admit proof of custom under such circumstances would take from the parties the right to regulate their business dealings and relations as they might see fit and would in effect limit their right to contract. This cannot be done: Stoddard v. Emery, 128 Pa. 436; Harris v. Sharpless, 202 Pa. 243.
The testimony of the electrician who did the wiring through the wall and also that of his assistant was to the effect that the work was properly done and since a contrary condition appeared at the time of the fire, plaintiff contends the burden is on defendant to show it was not at fault. This contention cannot be sustained as one who charges negligence must prove it. While there are exceptions to this rule in which the doctrine of res ipsa loquitur applies the facts of this case do not bring it within the exception. In East End Oil Co. v. Penna. Torpedo Co., 190 Pa. 350, it was said at page 353, “The
The judgment is affirmed.