274 N.W. 617 | Minn. | 1937
That Ehrke permitted the installation of the neon sign as the superintendent of the electric light plant and system is supported *517 by the evidence. He refused to remove the pole because Kenyon had spoken to him about using it for the purpose of installing this sign. Theisen went to see Ehrke on the day of the installation. Ehrke testified that he told Theisen the village council might object to the hanging of the sign, in which event the sign would have to come down, but that if he did hang the sign, not to go above the village wires. Ehrke's testimony was contradicted by Theisen's brother, who testified that Ehrke told him that he had told Theisen to go ahead and hang the sign on the pole. A special interrogatory was submitted to the jury for a finding whether Ehrke had told Theisen that if he did go on the pole he should not go above the village fixtures, and this was answered in the negative. On August 1, 1934, Theisen undertook to erect the sign on the pole. He was assisted by one Uttermark, who worked at a near-by filling station. Uttermark helped Theisen raise the bracket from which the sign was to be suspended, up on the pole, but had to leave to service a car at the filling station before Theisen had finished nailing the sign bracket to the pole. There were no eyewitnesses to what transpired after Uttermark left, but the physical facts existing immediately after the accident show that after fastening the bracket by nails Theisen had run a steel cable from the end of the bracket to the top of the pole, where the cable was wrapped around a lag bolt or wood screw which Theisen had driven into the top of the pole. This cable was longer than was required to bridge the distance from the end of the bracket to the top of the pole, and after it was attached to the lag screw an unused portion of some five feet five inches remained. The cable could come in contact with the high tension electric wires only if it was extended straight out horizontally north or south from the pole. If it was permitted to fall down or dangle or extend straight out east or west from the pole there was no danger of such a contact. The last person to see Theisen prior to his fall from the pole was a 14-year old boy who, attracted by a crackling noise, turned and saw Theisen standing on the sign bracket with what appeared to be a ball of fire near his head, and as the boy looked Theisen fell to the ground. He died the following day from burns caused by electric shock. It is reasonably certain that the current *518 was conducted to Theisen by means of the steel cable which ran from the end of the sign bracket to the top of the pole. Defendant contends that the unused portion of the cable, a piece five feet five inches in length, came directly in contact with the high tension wires, which were four feet from the top of the pole on the north and south sides. Plaintiff claims that the contact could have been produced by a disruptive or "brush" discharge emanating from the high tension wires when the cable was within from two and one-half to three inches or more from the wires and that this is more probably what occurred because evidence of actual contact with the high tension wires, as indicated by copper deposits on the cable, was found at only one place.
1. Plaintiff claims that Theisen was upon the pole for the purpose of hanging the sign by defendant's permission given by its agent, Ehrke. Defendant asserts that Ehrke did not have authority to grant such permission and that he did not in fact grant it and that Theisen was a trespasser when he went upon the pole. The issue was submitted to the jury, which found in favor of plaintiff. The record fails to disclose that Ehrke's authority was ever definitely defined. The evidence does show that Ehrke exercised a general authority to act for the village. He testified that he was superintendent of the light system of the village and had held this office for 17 years, that he hired men and supervised them in the care and maintenance of the light system, that he purchased materials needed for the system, that he did not always receive permission from the council before he erected or changed the location of poles. The recorder of the village testified that the village council had never granted permission to anyone to hang a sign on the pole. This does not tend to prove that Ehrke did not have authority as superintendent to grant permission to use the pole. Acts by a municipal officer in charge of a department are presumed to be in performance of official duty when the acts relate to matters confided to his control and supervision. The officer's general authority is sufficientprima facie to establish his authority to act with respect to the particular matter. Kobs v. City of Minneapolis,
2. Negligence may be found in the failure of defendant properly to warn Theisen of the dangers to which he was exposed in hanging the sign. It is admitted that there were no guards or warning signs on or near the pole. Ehrke claims that he warned Theisen by instructing him not to go above the village fixtures and telling him that the wires above carried 33,000 volts. His claim that he warned him not to go above the village fixtures is eliminated by the special verdict. The warning that the wires carried 33,000 volts made it a question for the jury whether or not the defendant was negligent in the circumstances. Ehrke knew that Theisen was inexperienced as an electrician and that the wires presented an added danger in the form of a "brush" or disruptive discharge with which persons inexperienced in electricity are not familiar. The testimony is that there is an electrical field extending at least two and one-half or three inches from the wires which would give off "brush" or disruptive discharges sufficient to cause death, a fact generally unknown to those unfamiliar with electricity. Ehrke made no mention of this hidden danger to Theisen. It is the duty of one who permits another to come upon his property to exercise due care to warn such person of the risks of hidden dangers to which he will be exposed by coming there pursuant to the permission. Hoppe v. City of Winona,
It was a question for the jury whether defendant village properly warned Theisen. The warning went to known and obvious dangers, that is, the coming in contact with the wires carrying the electric current. But there was no warning at all as to the hidden danger of "brush" or disruptive discharges. In Dunn v. Cavanaugh (C.C.A.) 185 F. 451, 453, the court said:
"But we think the judge was quite right in leaving it to the jury to say whether the warnings would not be understood by an ordinarily prudent person as referring to actual contact with the wires, and whether they were of such character as to advise him of the danger which actually caused his death."
The jury might find negligence from the failure to warn as to the hidden dangers of "brush" or disruptive discharges even though there was a warning as to the danger of coming in physical contact with the wires themselves. Hoppe v. City of Winona, supra; Jordan v. Malden Elec. Co.
"If the engineer or foreman cognizant of the danger, * * * was found to have given the intestate no warning of the concealed risk to which he was exposed; that, even if he did not come in contact with any portion of the mechanism, a current of electricity at a high voltage might jump from a conductor rod constantly charged to his person, and complete the circuit by passing through his body, the defendant's negligence was established."
3. Theisen's contributory negligence was for the jury. He was not experienced in working with electricity, and there is nothing to show that he knew of the possibility of a disruptive or "brush" discharge. There are no eyewitnesses to what transpired immediately before the current was discharged. It must be presumed, until the evidence shows otherwise, that in working on the pole Theisen exercised due care for his own safety. Gilbert v. City of Tracy,
"Where death was almost instantaneous, as in this case, and no one could see or positively know the cause which precipitated deceased on this live wire, it is the duty of this court to presume that the person who lost his life under such circumstances exercised reasonable care and precaution in an effort to preserve his life and that he did not expose or subject himself to injuries and risks that he might reasonably have anticipated or expected would inflict mortal injuries."
This presumption will yield to proof of contributory negligence, "but the question is always one of fact for the jury, unless the undisputed evidence so conclusively and unmistakenly rebuts the presumption that honest and fair-minded men could not reasonably draw different conclusions therefrom." Gilbert v. City of Tracy,
"If it should be assumed that this information from a fellow employee was sufficient to establish knowledge of the high potential, and that it was dangerous to fool with the wires, the question of contributory negligence of deceased still remained for the jury." See 20 R.C.L. p. 111, § 97.
The only fact that would justify an inference of contributory negligence is that when Theisen tied the sign bracket to the top of the pole he used a steel cable that was some five feet longer than was necessary. What precautions he took to prevent this loose end from coming in contact with the power wires cannot be known. But on the fact alone that he had the extra portion of cable the question of his negligence cannot be taken from the jury. Fair-minded men might differ about the subject, and this made the question one for the jury. Hoppe v. City of Winona and Gilbert v. City of Tracy, supra; Neumann v. Interstate Power Co.
The questions of defendant's negligence and deceased's contributory negligence were properly submitted to the jury, whose verdict should not be disturbed.
Judgment affirmed.