Lead Opinion
On the 2d day of August, 1900, Thomas R. Dent commenced work as a lineman for the New Omaha Thompson-Houston Electric Light Company, which at that time owned and operated an electric light system in the city of Omaha. On the same day, in the course of his employment, he was engaged in fastening wires on insulators on the crossbars of a pole, upon which a number of wires were strung, radiating therefrom to the four points of the compass. The wires were strung on four sides of the pole, and wires of different polarity were on each of the four sides. The insulating material on the wires was old and rotten, and while Dent was fastening one of the wires to the glass insulator, the insulating material on the wires broke or cracked on the side of the glass insulator opposite to him, as he supported himself at work on the pole at some distance from the ground. In attempting to fasten another wire, he used á pair of iron or steel pliers to handle it. While thus engaged his elbow came in contact with the other wire at the point where the insulation was cracked or broken, and the wires being alive and of different polarity, the current passed through his body and killed bim. The widow of the deceased was appointed administratrix of his estate and brought this action against the electric light company for damages on account of the death of her husband, charging that death was caused by the negligence of the defendant company.
The petition contains three specifications of negligence: (1) the use of wires on which the insulation had become, old and unsafe; (2) placing wires of opposite polarity on the same side of the poles upon which the deceased met his death; and (3) not cutting off the current from wires on which the deceased was at work when killed. The answer
The court, among other things, instructed the jury as follows:
“10. An employee is under the same legal duty to care for his own safety that his employer is to provide for his protection from accidents. It was the duty of James R. Dent while in the performance of his work as a lineman to exercise ordinary and reasonable care and caution under the circumstances of his situation to avoid electric shocks and consequent death. While he had a right to assume that the defendant had used ordinary care and diligence to make it reasonably safe for him to work on live wires, yet he was not at liberty to close his eyes to defects of insulation which were open and obvious, or which he might have seen by using ordinary and reasonable care and caution. If you believe from the preponderance of the evidence that the insulation on wire called No. 2 was broken by said Dent when he tied said wire around the glass insulator; and if you further find from the preponderance of the evidence that said break in the insulating material on said wire was open and obvious to said Dent, or that he ought to have seen "it by an exercise of ordinary care on his part before he attempted to tie on the next wire; then your verdict must be for tbe defendant, even though dependant might have been negligent.”
The defendant insists that the verdict is contrary to the foregoing instruction, because the evidence is undisputed that the break or crack in the insulation, which permitted the deceased’s arm to come in contact with the wire, was on the top of the turn in the wire and in full sight, so that if he did not see it, he should have seen it aud protected himself against it. But there is sufficient evidence to sustain a finding that the insulation on this wire was about ten years old; that the ordinary life of
But it is urged that he knew the insulation was defective, because he had called attention to it in the forenoon, and had been told that it could not be trusted. But the evidence on this point is that at another point on the line and some hours before the accident, the deceased had called attention to the fact that the insulating material was hanging in strips from the Avire at this point, and was then told that it was' defective and unsafe. But the defect at that point was patent and of a character to arrest the attention of ordinary persons, because, as before stated, it was hanging in strips from the wires. But there is no evidence that the insulating material on the wires at the point where the accident occurred Avas obviously defective, or that there
The defendant contends that the second and third specifications of negligence in the petition are not sustained by the evidence. As to the third, the court directed a finding in favor of the defendant, so it requires no further notice. As to the second, there is evidence sufficient to sustain a finding that had only wires of the same polarity been strung on the same side of the pole, the accident would not have occurred. It is true there is a substantial conflict in the evidence as to whether it would have been practicable or advantageous to put only wires of the same polarity on the same side of the pole. But the gist of the action is whether the defendant did or omitted to do that which a man of ordinary care and prudence, under like circumstances, having a due regard for the safety of his
The defendant complains of the refusal of the court to give the following instruction:
“The jury are instructed that if the insulation upon the wires on this pole upon which Dent was injured, which wires have been designated in the testimony as Nos. 2 and 3, Avas rotten and brittle, and for that reason liable to crack or break upon bending around the glass insulators on the arms, and this fact Avas known to Dent when he undertook to attach the wires Nos. 2 and 3, and Avith this knoAvledge Dent undertook, without protest to this defendant, to attach said Avires to said insulators, the plaintiff herein can not complain of the condition of the wires as to insulation, and as to that issue you will find for the defendant.
“By knowledge is meant not only what Dent actually knew but Avhat, from the knoAvledge of insulation on that subject he possessed either from experience, observation or the warnings or cautions of creditable persons he ought to have, known.”
This instruction is practically the same as the paragraph hereinbefore quoted, given by the court on its own motion, consequently it was not error to refuse to give the one in question.
The defendant, tendered instructions to the effect that if the deceased kneAV that the wires with and among Avhich he was working were live wires, and proceeded to his work without protest, the jury should find for the defendant as to the third specification of negligence. These instructions were refused and rightly, because, as we have seen, the court of its OAvn motion directed the jury to find agaifist the plaintiff as to that specification.
Other instructions were tendered to the effect that if the
It is recommended that the judgment of the district court be affirmed.
By the Court: For the reasons stated in the foregoing opinion, the judgment of the district court is
Affirmed.
Rehearing
The following opinion on rehearing was filed June 8, 1905. Judgment of affirmance adhered to:
It is insisted by counsel for the electric light company, plaintiff in error, that the testimony in this case, when interpreted by the rules of law- properly applicable, discloses that the death of the plaintiff’s intestate was caused by his own negligence contributing thereto, and, for that reason, that the verdict of the jury is against the weight of the evidence and contrary to law. In the former opinion in this case {ante, page 668), the question of contributory negligence was given consideration and the conclusion reached was that the evidence as disclosed by the record was such as to. warrant the inference that the de
We do not think it can be said as a matter of law that the deceased was, under the circumstances, guilty of contributary negligence because he handled the Avires as though the insulation would remain Intact and serve as a protection because of its qualities as a non-conductor of electricity. It can not be said that with the experience and knowledge he is shown to have possessed that he must, like others with much larger experience, be charged with knowledge of the decayed and brittle condition of the insulation and its liability to bréale when the Avires around Avhich it was placed were twisted and this additional strain put upon it. The witness Ripley, a witness apparently fair and competent to testify, says that he supposes that all linemen who had much experience with insulated wire would know that the insulation, in the decayed condition as was that with Avhich the deceased was Avorking, was likely to crack if given a short twist and that it was dried out so that it would not give like neAv insulation. He says he knew" such to be the fact, but that he did not mean that this would be apparent to everybody, but only to those of experience in handling insulated wires, and then they Avould have to have experience with old and new insulation in order to distinguish the difference. This we regard as a fair statement of the situation and of the deceased’s knowledge in respect of the condition of the insulation on the wires on which he was at work. Taking the knowledge and experience of the
In this connection it is to be observed that whether the deceased knew at the time he was working with a pair of live Avires strung on the same side of the poles was a mat
As applied to plaintiff’s intestate and the character of the employment in the case at bar, no such questions arise. The issues in the present case relate only to the negligence of the master as alleged and the alleged contributory negli
Affirmed.