Smith v. Milwaukee Electric Railway & Light Co., 127 Wis. 253

Smith v. Milwaukee Electric Railway & Light Co.

127 Wis. 253 | Wis. | 1906

Siebeckeb, J.

The evidence adduced shows that the decedent was an experienced lineman and had knowledge of the dangers commonly incident to such employment in working in proximity to live electric wires of high potentiality. It appears that a conversation which he had on the morning of the day of the accident at the power house with the superintendent in the presence of other workmen was partly elicited upon direct examination of some of defendant’s witnesses. So far as shown it was to the effect that the superintendent apprised decedent that in doing the work on the pole in question he must look out for and guard against the live wires carried on the cross-arms of the pole. Upon cross-examination of these witnesses plaintiff’s counsel propounded an inquiry as to whether the decedent in this conversation requested the superintendent to shut off the current while he performed the duties assigned to him at the point in question. Plaintiff also offered to prove all of this conversation in rebuttal of defendant’s claim — to which proof was admitted — that decedent was fully warned of the danger, namely, that these wires were charged with a high potential current. It is claimed that if the whole conversation had been admitted it would have tended to show that the decedent was informed by the superintendent that the current would be shut off. If the superintendent so informed him it seems quite clear that it would have been very material on the question of decedent’s contrib*257utory negligence. For if be was so informed be bad a right to assume that the wires were not charged with electricity at the time be worked among and on them and be would not be guilty of a want of ordinary care in coming in contact with them as be did. The fact, which appears in evidence, that in the forenoon of the day the current was cut off to enable the decedent and other linemen to repair the wires, lepds emphasis to the importance of this evidence as tending to show that he was free from contributory negligence, and that he had a right to assume that the current had been cut off. The trial court ruled that the decedent was sufficiently warned of the danger and that he assumed the risk incident to it, and that therefore no actionable negligence was shown. It is manifest from the record that the verdict was directed upon the ground that* under the facts and circumstances disclosed by the evidence,, it conclusively appeared that decedent had assumed the risk of all dangers .incident to the alleged negligence. As above indicated, this is erroneous if he had been informed or was led to> believe that the current would be cut off the wires with which he came in contact. The evidence as to defendant’s negligence-in the respect charged is in conflict and permits of different, reasonable inferences in support of the claims of either party,, and it therefore presents a question to be determined by a jury. Beyer v. St. Paul F. & M. Ins. Co. 112 Wis. 138, 88 N. W. 57; Zentner v. Oshkosh G. L. Co. 126 Wis. 196, 105 N. W. 911.

The ruling above complained of was erroneous upon a well-established rule as to the competence and materiality of evidence, namely, that all parts of a conversation, if material to-the issues litigated, may properly be offered by either party as a matter of right, and' “each party may give his version of a conversation, and if one gives a part sufficiently complete to be material to the case, the other has the right to prove the balance. That, of course, he may do by cross-examination or by other witnesses.” Fertig v. State, 100 Wis. 301, 75 N. *258W. 960, and cases cited; Garvin v. Gates, 73 Wis. 513, 41 N. W. 621; Hupfer v. Nat. D. Co., post, p. 306, 106 N. W. 831. Tbe respondent contends that these rulings of the court cannot be regarded as prejudicial, because, after the alleged conversation at the power house, at a meeting of the superintendent and the decedent in the street near the pole on which the accident occurred, the superintendent informed him as he was ascending the pole that the wires were charged with an electric current and that he must loot out for this danger. It is true that'defendant’s witnesses testified to this effect, but it also appears by the evidence of the witness Randall, who worked with decedent and was at the foot of the pole where this conversation is claimed to have occurred, that, in speaking, the superintendent addressed him and not the decedent, and that decedent had then ascended the pole to such a height that on account of noises he probably did not hear what was said, and that he did not thereafter communicate to the decedent anything said by the superintendent. Under these circumstances it cannot be said that it appears without dispute that the decedent was warned that the wires were charged with an electric current. The exclusion of this evidence was prejudicial and necessitates a retrial of the case.

By the Gowrt. — The judgment is reversed, and the cause remanded for a new trial.