180 Iowa 1362 | Iowa | 1917
The foregoing sufficiently describes the place where
Plaintiff brings this action to recover damages for the injury so sustained, alleging that the same was the proximate result of the defendant’s negligence, as follows: (1) Failure of the defendant to insulate its power wires or make other provisions to guard the same and prevent contact therewith; (2) failure to provide proper and sufficient safety devices or equipment to obviate or lessen the dangers arising from contact of interference with its wires; and (3) failure to construct its lines according to the requirements of law.
He also makes the general allegation that the servants and employes of the defendant were grossly and recklessly negligent in the maintenance and operation of its power lines. It may also here be said that the petition describes the telephone line and the power line as being located along
I. It is said, and numerous precedents are called to our attention as supporting the contention, that there is no evidence in the record to sustain a finding that defendant was negligent as charged. Counsel premise their discussion with the claim that the duty of the defendant to guard or protect its wires carrying high tension currents of electricity, against exposure to human contact exists only where the location of the wires is such as to suggest the likelihood or probability of injury to someone in the absence of such adequate protection. In other words, if the injury complained of from such source could not reasonably have been anticipated by the party charged with negligence in failing to protect, then there is no liability. With this alleged rule as a foundation, it is next argued that the trial court should have held, as a matter of law, that defendant was not bound to anticipate the occurrence of an injury such as plaintiff claims to have sustained, and that the charge of negligence fails for want of support in the evidence. We shall not here attempt to discuss or define the limits of the rule of “reasonable anticipation” as above set forth, except to say that some courts have carried it to an extreme to which this court has never committed itself. We have recognized such doctrine as being applicable in cases involving breach of contract obligations and contract rights, but have distinctly refused to do so where damages are demanded for a tort — and negligence is a tort. See Mentzer v. Western
Again, the application of the rule, even in courts giving it effect in negligence cases, is often very materially affected by the question whether the person charging negligence is a trespasser, or mere licensee, or is injured in the course of lawful employment, or in a place where he has an unquestionable right to be. It is also a very material inquiry in such cases whether the duty with neglect of which a defendant is charged, is one of common-law obligation only or is one of positive statutory requirement. The statutes, now so common, though of comparatively recent enactment, providing in specific terms for the manner of guarding machinery and other dangerous instrumentalities, in order to avoid or minimize peril therefrom to all persons exposed to contact therewith, doubtless had their origin in the legislative desire not only to save life and limb, but to put an end to much of the haggling and hairsplitting, otherwise quite sure to arise in nearly every case, as to whether the injury complained of is one which the defendant should Ijhve anticipated.
But passing, at present, the question of statutory obligation, and assuming, for the purposes of this case, the legal rule to be as counsel state it, we are quite satisfied thait the record does not support their conclusion that there is='no evidence to sustain the charge of negligence. In the first place, the general rule that every person is bound to imanage and control his own property and carry on his own /business with due regard to the rights, safety and comfort of others is no less incumbent upon a public service corpo- < ration than upon the individual citizen. It may, if it . chooses, establish and carry on a business which is inherent- ■ ly.dangerous, or it may, for business purposes, employ or use an agency or power which, unless properly controlled
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Upon this, and other points to which we have referred, but few of the cases cited by appellant have any direct bearing or Application. The quotations made from such decisions are largely of an argumentative character suggested by the peculiar facts of the case in hand, rather than a statement of legal rule or principle of general application. Indeed, while we would neither adopt nor approve the discussion indulged in by some of the courts to whose decisions we are cited, we are of the opinion that they announce no rule of law which, if held to be entirely sound, would require us to hold that the trial court in this case erred in refusing to dispose of the question of defendant’s negligence as one of law rather than. fact.
“4. The allegation of plaintiff that it was unlawful for defendant to maintain its wires upon the public highway without having them protected against contact with other Avires is AvithdraAvn from your consideration, because said Avires were erected before the statute on this subject Avas passed, and such statute does not apply to said wires.”
This request was denied, and the cause was submitted to the jury Avithout specific mention of this feature of the controversy. NotAvithstanding this record, appellant urges in argument to this court that its line is constructed outside of the highAvay and upon a private right of Avay. This claim is not only unsupported by the evidence but is also wholly inconsistent Avith the attitude taken by the appellant on the trial beloAV, and Avith its request for the instruction of the jury. In producing its evidence, as Ave have seen, it not only failed to prove its alleged location outside of the right of Avay, but succeeded in excluding most of the direct evidence offered by plaintiff to show the exact location, on the ground that the fact was Avholly immaterial Avhether its line Avas inside or outside the boundaries of the highAvay.