164 Ky. 46 | Ky. Ct. App. | 1915
Opinion of tne Court by
Affirming.
A. T. Smith, manager of the A. T, Smith Drug Company, was killed hy an electric shock, at a time when he -was using an electric light, in the drug store of the com-pany. The electricity for the lighting was furnished hy -the Middleshoro Electric Company, a corporation, en.-gaged in generating and. distributing electricity for '.lighting purposes. The appellant, as administratrix of 'decedent, sued the electric company for $50,000.00 in ¡damages, for the loss to decedent’s estate by his death, .'alleging that his death was caused hy the gross negligence of the servants of appellee, who were in charge
The grounds for the new trial will be considered in the order offered by the appellant.
The first.of the grounds is alleged error of the court in overruling her motion to file her fourth amended petition. This amended petition was not offered until after the answer and reply had been filed, and not until the third day after the trial had begun, and had been proceeding. In such a state of case, it is a matter within the sound discretion of the trial court to permit an amendment to pleadings. This pleading, which was offered, is only a statement in amplified form of the allegations of the original petition, and while it does not specifically allege any particular portion of the machinery, or equipments of the electric light company, as being out of repair, or as being a particular cause resulting in the death of the decedent, it is substantially an allegation, that all the machinery, lines, and equipments were out of repair, or not properly fixed and placed, and that the ■ appellee was negligent in thus allowing the machinery, equipments, transformers, and .other parts of its plant to be out of repair, or not properly constructed; and its failure to provide devices which were considered necessary to make the operation of an electric light plant safe, so as to prevent any loss of life or injury by reason of its operation, and, furthermore, it contained1 a statement of the law, or what it alleged to be the law, applying to a corporation engaged in generating and furnishing electric light. It will be borne in mind, that the appellee, before it filed its answer, filed a written motion, and moved the court to require the appellant to make more specific her petition in its allegations as to ■the specific place, or thing, or act or condition of negligence on the part of the appellee which was complained of. The court overruled this motion. .It does not appear •whether it was done upon the objection of the appellant
The failure to allow it to be filed, on account of the allegation in it, that the damages, which the estate of the decedent had suffered, was $100,000.00, instead of $50,000.00, as alleged in the original petition, was not prejudicial, as the appellant failed of any recovery at all.
The error alleged, because the court refused to allow the third amended petition to be filed, was not prejudicial, for the reason above stated, as it contained only an allegation, that the damages should be $100,000.00, in place of $50,000.00.
The third ground relied upon for a new trial, are alleged errors of the court in rejecting and refusing to admit material and competent evidence on behalf of the appellant upon the trial and permitting incompetent evidence to be heard over the objection of appellant. Complaint is made that the court permitted the witness, Starling, to be asked and to answer the question, “If the cord had been tied, would there have been any trouble?” and to which he answered, “No.” This witness,
D. Z. Gibson, who testified that he was a graduated embalmer of dead bodies, and that he had seen the bodies of two persons, who had been electrocuted, and after de
Eugene Smith gave testimony to the effect, that some time after tbe death of the decedent, but he was not able to say how long after his death, or at what time, he observed that the insulation was worn off the wires which came from tbe pole to tbe top of tbe window and into tbe building where tbe decedent’s death occurred. This evidence was excluded, and we think properly so, because it was too indefinite as to time, and was no evidence of the fact that the wire was in that condition at the time of the decedent’s death.
Tbe witness, Squires, after making testimony qualifying himself to testify as an expert in the operation of electricity and electrical apparatus, stated that about seven months after the death of tbe decedent, and when there had been no changes made, since before the death of the decedent, in the transformers, from which the secondary wire that furnished light in the building in which decedent came to his death; that be had made a test to determine whether there was any defect of any kind in tbe transformer, and whether it was not working properly, and the method adopted by him to make tbe test, and the results of the test, he had reduced to writing, and that the test, as made by him, would show clearly whether there was then any defect in the transformer, and whether any volume more than 110 volts of electricity' was escaping from the transformer onto the secondary wires, would be shown by the test which he had made.. This written test was submitted to several other witnesses during the trial, who were experts in the operation of electrical machinery and the apparatus of electric light plants, and they were asked to state whether; or not a test made in accordance with the manner in
At the close of the evidence, the appellant offered in writing, instructions, which she designated in the record, la, 2b, 3c, 4d, 5e, 6f, 7g, and 8h, and appellee objected thereto, and the court refused to give each of them, except 3c and 8h. The appellee offered written instructions, designated in the record as No. 1, No. 2, No. 3, No. 4, and No. 5, to all of which appellant objected. The court’ refused to give either of these instructions, except No. 3. The court then gave instructions, in addition to the ones offered by appellant and appellee, numbered 1, 4, 5, 6, and 7. To the adverse rulings of the court in giving and refusing to give instructions, each party saved proper exceptions.
From the evidence, it seems that there were six theories offered as to the cause of the death of decedent. One theory was, that the transformer from which the secondary wire led into the drug store, in which the death occurred, was defective or broken down, or in some way, was out of proper condition for the performance of its office, and that by reason of such defective condition, the primary current of 2,300 volts of electricity passed from the primary wire to the secondary wire, and thence into the wire to which the light that decedent was using, was attached, and that this great and unusual current of electricity caused the death. A
We will not undertake to make any considerable statement of the evidence offered upon the trial, because to do so, would extend this opinion into a volume. The evidence was composed largely of the opinions and conclusions of persons, who were experts in the knowledge and operations of electricity and electrical apparatus, pertaining to plants for the generation and distribution of electricity for lighting purposes. Suffice it to say, that the evidence conclusively shows, that the death resulted from an electrical shock, and there is some evidence conducing to show from facts, or from inferences from the facts, that the death was caused in the manner suggested by each of the theories advanced.
The court, by its first instruction, advised the jury, that it was the duty of the appellee to exercise the utmost care and skill, to install and construct, keep and maintain, inspect and repair, control and operate its lighting plant, machinery, wires, transformers, and equipment free from danger to those persons, including the decedent, who had the right to use its electrical current for lighting purposes, and to make same free from any unusual, unnecessary, and dangerous current of electricity into the building used by the deceased as a drug store,
The converse of this instruction followed. The court, also, advised the jury by another instruction, that “utmost care and skill,” as used in the instruction, means the highest care and skill known, which may be used under the same or similar circumstances.
By another instruction, the jury was advised, that the deceased had the right to assume, in the absence of notice to the contrary, that the appliances, wires, transformers, and equipment of the appellee, were in good order and free from such defects as would permit the flow of an unusual, unnecessary and dangerous current of electricity into the building in use by him.
The court, by an instruction designated as No. 4, advised the jury, that the appellee was under no duty, and owed no'duty to the deceased, to inspect or know of the conditions of the wiring, and other electrical fixtures, and equipment in the building in which he was killed, or to maintain same, and was not responsible for their1 condition, or for the decedent’s death, if his death resulted from the defective condition of the wiring, electrical fixtures, or equipment in the building, unless the appellee, its agents or officers, in charge of the operation of its plant, knew of the defective conditions, if any there were, of the interior wiring, or equipment in the building, in time to have cut off its current from the building, and prevented the injury to decedent, which resulted in his death. By a further instruction, the jury was directed, that, although it might believe that the decedent’s death was caused by the failure to perform the things, as set out in instruction No. 1, yet, if it, further believed from the evidence, that the deceased was guilty of negligence which contributed to his death, and but for which negligence, he would not have been killed, it should find for appellee.
The court, also, defined negligence and ordinary care; the measure of damages, if they should find for the ap
While an electric light company is not an insurer of the safety of its patrons, nor of people, who may come in contact with its wires and its apparatus, while at places, at which they have a right to be, and engaged at the performance of things, which they have a right to do, it is required to exercise the very highest degree of care and skill in the installation, construction, and operation of its plant, and the highest degree of care and skill in the inspection of its wires, and appliances, and all of its apparatus, to prevent injury to persons, and to that end should provide itself with and use the known necessary devices to control its electrical current, and prevent the passing of dangerous currents of electricity into the houses of its patrons; because the patrons of such a company, and the persons on lawful business in the houses of the patrons, have a right to assume, in the absence of knowledge to the contrary, that the appliances and fixtures of the company are free from defects, which would permit the flow of an unnecessary and dangerous current of electricity into the houses, endangering their lives or safety. Lewis Admr. v. Bowling Green Electric Light Co., 135 Ky., 611; Thomas’ Admr. v. Maysville Gas Co., 108 Ky., 224; Bowling Green Gas Light Co. v. Dean, 142 Ky., 678; Mangan’s Admr. v. Louisville Electric Light Co., 122 Ky., 476.
The nature of electricity and its operations, and what it may do or may not do, are things very little understood or known by the masses of the people, and are subjects about which, those professing the greatest knowledge of electricity and the' effects of it, under circumstances, dispute. It cannot be seen, and can only be felt, and when the effects of it are felt, it is usually too late for the victim to escape its more deadly effects. The suddenness and destructiveness of its effects are such, that those who choose to manufacture and distribute it, although it is a lawful, and now almost a necessary business, they must be held to the highest degree of care in its distribution.
The first, second, and third instructions of the court are in accordance with the doctrines above expressed, and were sufficient, and authorized the jury to find for
The instruction, which advises the jury, that the appellee did not owe any duty to deceased, to inspect or know of the condition of the wires and other electrical fixtures and apparatus, which were on the inside of the building in which deceased lost his life, and was not responsible for his death, if it resulted from any defect or defects in these wires or fixtures, is very earnestly complained of by appellee. The precise question involved in this case, and covered by this instruction, does not seem to have ever, heretofore, been before this court for determination. The appellant contending that the giving of this instruction by the trial court, was prejudicial error to her, cites the case of Lewis’ Admr. v. Bowling Green Electric Light Co., supra; Thomas’ Admr. v. Maysville Gas Co.; and Bowling Green Gas Light Co. v. Dean, supra, as authority for her contention, that the appellee owed a duty to inspect the wires and apparatus in the decedent’s building, and to keep them in repair, and to know of their condition, and to give notice to decedent of their condition, if defective or out of repair. It will be necessary to state the facts which the evidence tends to prove, upon the questions relating to the ownership, control, and condition, and use of the wires and fixtures within the building, in which decedent lost his life. Theré is no question made as to their ownership. They were not owned nor controlled by the appellee. They were either the property of A. T. Smith Drug Company, of which decedent was manager, or else they were the property of the owner of the building, from whom the drug company had leased it. There were nine or ten lights, in all, in the room in which decedent conducted a drug store. All of these lights were in front of the prescription case, which extends across the room, except one, which was at the end of a wire, which extended from a rosette in the ceiling over a partition, and was fastened to the ceiling, until it reached a point in a narrow and dark room, behind the prescription case, where it was suspended from the ceiling, which was about fourteen feet high, and reached quite or nearly
The cases cited by appellant are not in point upon the question for determination. The case of Thomas’ Admr. v. Maysville Gas Co., supra, was this: The gas company furnished the electricity to propel the cars of the street railway company. The wires of the railway company were constructed along the streets, and a guy wire having broken loose, and not being properly insulated, it was charged with electricity, and as a boy was passing upon the street, he came in contact with it, and was killed. The gas company and the railway company were both held to be liable. It will be noted, however, that the victim was one having no interest or control of .the railway company, and besides, the wires were on the .public streets, where the gas company had both the opportunity and the right to make an inspection.
The case of McLaughlin v. Louisville Elecric Light Co., 100 Ky., 173, the facts were these. McLaughlin was engaged in painting the Fourth Avenue Hotel, in Louisville, and came in contact with a wire, which extended across from the opposite side of the street, and was attached to the wall he was painting. This was a wire entirely owned and under the control of the electric light company, and on the outside of the house, and the court held that the electric light company, where it owned wires
The case of Lewis’ Admr. v. Bowling Green Gas Light Co., 135 Ky., 615, the facts were these. The gas light company was engaged, for compensation, in furnishing electricity to a line, which was owned by other persons, and which extended outside of the city of Bowling Green. This line became parted in two places, and was hanging down. Lewis, who had no interest in the line, was passing by, and took hold of the wire, probably to pull it down, and put it out of the way. He was shocked and killed. This line was along a public road, where the gas light company had both power and right to make an inspection. This court said: ‘ ‘ The company conld not escape its responsibilities as the dispenser through the public streets and roads of such a stealthy, deadly force as an electric current of such high voltage upon insecure lines of wires, where the public might reasonably be expected.”
The cáse of Bowling Green Gas Light Co. v. Dean, supra, arose from the following state of facts: The gas light company strung its wires upon the poles of the Western Union Telegraph Company. Dean, a servant of the telegraph company, while performing his duties as such, came in contact with a wire of the gas light company, which was not properly insulated. The shock resulted in his death. Dean had no interest in either company. The lines were in the street, and where the gas¡ light company had both the power and the right, and owed the duty of inspéction. The gas light company was held responsible, because of the failure to exercise the highest degree of care in keeping the wires properly insulated.
In the case of Mangan’s Admr. v. Louisville Electric Co., 122 Ky., 476, a workman in the shops of the Louisville & Nashville R». B. Co. was injured by an electrical shock, caused from a defective transformer in the street, and the question under consideration did not arise in that case. Neither did the question arise in Overall v. Louisville Electric Light Co., 47 S. W., 442; nor Schweitzer’s Admr. v. Citizens General Electric Co., 52 S. W., 830; nor in Owensboro v. Knox’s Admr., 116 Ky.,
In other jurisdictions, this question has been determined. In the case of the National Fire Insurance Co. v. Denver Consol. Elec. Co., 63 Pac., 949, a depot company sought a recovery against the electric light company, because of damages arising from a fire, caused from a defect in the inside wiring of the depot for electric lights. The court said: ‘ ‘ The electric light company under a contract with the depot company, connected their system with the wiring, and delivered a current for use. This was the extent of the connection between the two companies, and it was simply a delivery of a current for lighting purposes by one, and the payment of an agreed price therefor by the other. Whatever, therefore, may have been the character of the wiring' or the nature of the work, it was a matter with which the electric company was not chargeable. If it was negligently done, the negligence was the negligence of the depot company, which put it in, or of the firm which that company hired, whose negligence would, of course, be the negligence of the depot company. There was a.total absence of evidence which sustained or tended to sustain any knowledge on the part of the electric light company of the character of this wiring.”
The Iowa Supreme Court held in the case of Harter v. Colfax Electric Light & Power Co., 100 N. W., 508, that where'an electric light wire fell upon a guest in a hotel, and burned him, that the electric light company could not be held responsible, where it had not done the wiring. It was, also, held in that case, that, while the electric light company should be held to the utmost care known, which may have been exercised under the circumstances, in maintaining and operating its plant to prevent injury, yet it was not an insurer against all accidents, and was not responsible in the absence of a showing of a want of care.
The just rule seems to be, that the electric light company should not be responsible for injuries received by persons, arising solely from the defects in the wiring and appliances used for electric lighting purposes, within their own houses, and which are owned by them, and over which they have entire control, and where the only connection between the company and the person using the lights, is a contract between them and the company, for*
In the case at bar, the evidence tending to show that appellee sold the fixtures to deceased, and that its servant installed the same in part, was competent evidence, in an endeavor to prove that appellee had knowledge of the defects in same, if there were any, and if it had such knowledge, when the current was sent into the building, and the injury arose from these defects, the appellee was responsible therefor, and this phase • of the case, seems to be fully provided for in the instruction complained of. The testimony was very contradictory touching the fact, as to whether appellee sold the inside fixtures to deceased, or installed any part of same, and the knowledge of any defects in the inside fixtures, on the part of the appellee, was a question proper to be submitted to the jury. The jury was' the proper judge of the effect to be given the evidence, and the question being submitted to them, no complaint in regard to it can now be heard.
The claim that the trial court was in error in giving an instruction upon the subject of contributory negligence, is not meritorious. There was some evidence upon which to base such an instruction, and besides, the appellant offered such an instruction in writing, connected with another instruction offered by her, and the court did not give the first part of the instruction offered, but severed that relating to contributory negligence of appellee and gave it, substantially as asked, and appellant cannot now be heard to complain of it.
The appellant, also, complains, that the court below was in error in giving an instruction in which it defined negligence and ordinary care, and cites in support of her contention the doctrine announced in Mangan’s Admr. v. Louisville Electric Light Co., supra. This case,
The ground asserted for a new trial, arising from the alleged misconduct of the members of the jury, in separating after they had been put in charge of an officer, and some of them becoming intoxicated, and some of them being biased and influenced by the friends of the appellee, and because they were tampered with, prejudiced and incited against the cause of appellant, and the alleged error of the court in overruling appellant’s motion to allow the examination of persons orally and in open court, for the purpose of developing grounds for a new trial, will all be considered together.
The affidavits of each of the jurors were filed, and two affidavits of two members of the jury were filed. The first question to be determined, is what -effect are these affidavits of the jurymen, who tried the case, to have? It is a very old rule, in this jurisdiction, that the affidavit of a juror cannot be received, either to prove misconduct of himself, or any one -of his fellow jurors. It was so held in the case of Taylor v. Geiger, Hard., 597, and has never been held otherwise. In the case supra, the court said: “On the other hand it has been determined, and we think properly, that the affidavits of the jurors ought not to be received to prove misbehavior in themselves and their fellow jurors, but that whenever misbehavior of the jury is relied upon as a ground for a new trial, it ought to be made out by other evidence. ’ ’
In Steel’s Heirs v. Logan, 3 Mar., 397, this court said: “To allow verdicts to be overturned by the evidence of jurors would open a door for tampering with the jury, and might lead to consequences in their opera
In Allard v. Smith, 2 Met., 30, this court said: “It is a well established rule that the affidavits of jurors cannot be received to prove misbehavior in themselves or their fellow jurors, as a ground for impeaching their verdict.”
To the same effect, is Lucas v. Cannon, 13 Bush 650; Doran v. Shaw, 3 Mon., 415; Com’th. v. Skeggs, 3 Bush, 19; Johnson v. Davenport, 3 J. J. M., 390, and the doctrine of these cases has been adhered to in adjudications of this court upon that subject, until the present time, and may now be considered to be too well established to be again questioned. It has, however, upon the other hand been held, that the evidence of jurors may be received to prove that there was no misconduct upon their part. Com’th. v. Skeggs, supra; Howard v. Com’th., 24 R., 613; Gleason v. Com’th., 145 Ky., 128. It follows that the affidavits of the twelve jurors, on file, cannot be considered, in so far as it is proposed to impeach their verdict, by proof of the misbehavior or misconduct of the jurors themselves, or of their fellow jurors. The jury was not put in charge of an officer until the third day of the trial, but after being admonished, as required by Section 320, of the Civil Code, was permitted to disperse when the court adjourned for the night or for meals, as is common in the trial of civil cases. Aside from the affidavits of the jurors, only those of the appellant, Maggie Smith, G-. M. Smith, and O. B. Warring, were filed in support of the motion, and those of J. S. Bingham, Chas. Wilson, J. F. Bosworth, Bufus Wilson, and J. F. Bice, were filed by appellee in resisting the motion. The affidavit- of appellant states no fact of any kind, except her want of knowledge of any misconduct of the jury, until after the trial. G-. M. Smith states in his affidavit, that on the second day of the trial he saw John E. Howard, who was one of the jurors, and J. F. Bosworth go into a saloon. Whether they went into the saloon in company with each other, he does not say. C. B. Warring states in his affidavit, that he went into the saloon on the third day of the trial, and asked the bartender, if Howard and Bosworth came in there on the evening previous and got drinks, and that the bartender told him, that Bosworth arid an old man with a white beard came in, and Bosworth ordered drinks for
In the case of Gordon v. L. St. L. & T. Ry. Co., 16 B., 713, this court said: ‘ ‘A new trial will not be granted on account of the alleged intoxication of one of the jurors, where it does not appear that the juror was so drunk, as to be incapable of properly deciding the cause, and where it does not seem probable that the jury was or would be controlled by one drunken juror.” It does not appear in the case, at bar, that Yearry was in any wise intoxicated, while either hearing- the ease, or while considering the verdict. While in a few jurisdictions, it has been held that the intoxication of a juror, at all, during a trial, is a ground for a new trial, but the weight of authority is to the effect, that a new trial should not be granted unless the intoxication interfered with the-proper hearing and decision of the case by the jury.
It is insisted that Yearry’s separation from the other-jurymen is sufficient ground for a new trial. In this, we cannot concur. It does not appear that the successful, litigant had anything to do with his conduct, in this regard, or that his conduct could have in any way influenced the verdict. In the case of Bledsoe’s Ex’x. v. Bledsoe, 1 S. W., 10, the court said: “The fact that two-of the jurymen separated from the others for a few moments after the cause had been submitted to them for a. verdict, and before its rendition, would not vitiate it, because the appellee had nothing to do with it; and it does not appear that there was any corrupt motive or purpose upon the part of anyone; or that during such sep
This was a civil case, and the provisions of the Civil Code do not confer authority upon the court to put a jury, in a civil case, in charge of an officer, and to require the jury to remain together, until after the case has been finally submitted to them. Sections 318, 319, 320, of the Civil Code. If the court has the inherent right to require the jurymen to remain together during the trial of a civil case, and before its final submission, without the expressed authority of the- statute, it must be considered to be a matter within the sound discretion of the court and which the court may exercise in furtherance of justice, and in the prevention of improper influence upon the jury, and if such be the only ground upon which such authority is based, it must be left to the sound discretion of the trial court to determine, whether any violation of its order, in reference to the jurors remaining together, is prejudicial to the substantial rights of the parties.
The last ground relied upon for a new trial is the alleged error of the trial court in overruling appellant’s motion to permit her to call witnesses, and examine them orally, in an attempt to prove such misconduct of the jury, or of the prevailing party, as would authorize the court to grant a new trial.
Section 340, Sub-section 2, of the Civil Code, provides that a new trial may be granted for “misconduct of the jury, or the prevailing party, or of his attorney.”
Section 343, of Civil Code, provides that the application for a new trial must be by motion upon written grounds filed at the time of making the motion, and the grounds mentioned in Section 340, Sub-sections 2, 3, and 7, must be sustained by affidavits showing their truth; and may be controverted by affidavits. No provision is made and no authority given for summoning and examining witnesses orally in court, upon-a motion for a new trial. We do not hold that there are no circumstances under which such a proceeding as contended for, may be had, but it is at least, within the sound discretion-of the trial court, and the history of the judicial
The judgment is, therefore, affirmed.