156 Ky. 33 | Ky. Ct. App. | 1913
Opinion of the Court bt
Affirming.
William Lakeman in December, 1911, was operating a blacksmith shop at tbe corner of Ferry and Main streets in Covington, Kentucky; tbe Union Light, Heat and Power Company furnished bim with electric lights
The first complaint made on the appeal is that the court erred in the admission of evidence. The court allowed the plaintiff to show that the next morning after his injury, he called up the company and told them of the trouble; that it sent two of its men down to the shop who, after examining the shop, went to the pole referred to, and one of them, after going up the pole, called for a rope with which he tied up the sagging wire, so as to take it off of the lower voltage wire; that when he had done this, the trouble was removed and that the insulation on, the wires had been burned off at the point of contact. It is insisted that the evidence was incompetent and should not have been admitted. But the purpose of the evidence was not to show subsequent repairs for the purpose of establishing negligence on the part of the defendant; it was admitted for the purpose of showing the cause of the trouble. Electricity is a subtle agency, and the cause of the trouble was not known to the plaintiff, until the agents of the company discovered the sagging wire and the destroyed insulation. The rule is well settled that changes, repairs or precautions after an injury are not admissible to show negligence or as amounting to an admission of negligence. But one well settled exception to the rule is that such evidence is admissible to show that the condition complained of caused the injury. (29 Cyc., 616.) Without this evidence there would be nothing in the ease to show the cause of the trouble. The plaintiff was properly allowed to show not only that
It is also insisted that the court erred in giving the jury this instruction:
“You will find a verdict for the plaintiff unless you believe from the evidence that plaintiff placed a wire in the fuse or cut out box, to which the light wires in the premises were attached, in the position ordinarily occupied by the fuse wire described in the proof, and that by reason thereof a heavy current was carried into the wire which plaintiff grasped, and that plaintiff was thereby injured; or unless you believe from the evidence that defendant company by the exercise of the utmost care and skill in the management and care of its wires, appliances and electrical current, could not have prevented the entry into the wiring which plaintiff seized of an electrical current so dangerous as to injure plaintiff, then and in either of said events you will find a verdict for the defendant.”
In Mangan’s Admr. v. Louisville Electric Light Co., 122 Ky., 483, which was a case like this, we said:
“It is insisted for the appellant that the court should have instructed the jury that the defendant was bound to maintain perfect insulation and was responsible at all events if it failed to do so. Such a rule was in substance announced in Rylands v. Fletcher, 3 H. L., 330, but that ease has not been followed in the later cases in England or America, the modern rule being that the manufacture and sale of a useful article being a legal act, the manufacturer, in supplying it to his customers, is bound only to exercise such care and skill as the dangerous character of the thing and the attending circumstances demand. (Triple State Natural Gas and Oil Co. v. Wellman, 114 Ky., 79, 24 Ky. Law Rep., 851, 70 S. W., 49.) Electricity is a powerful and deadly agency. It cannot be seen and is as silent as it is deadly. It gives no warning of its presence. So the rule has been adopted that those who manufacture and use it must exercise the utmost care to protect others from the danger. They are not insurers, for the manufacture and sale of electricity is lawful, but in handling so dangerous an agency,
It is insisted for the appellant that the circuit court in instructing the jury did not follow the rule above laid down; but placed the burden of proof upon the defendant to show that it had exercised proper care. This is true; but the question remains, was this prejudicial to the defendant under the facts of this case? There was no conflict between the evidence for the plaintiff and that for'the defendant as to the cause of the trouble. The defendant’s witnesses introduced on its behalf on the trial testified to the same facts as the plaintiff’s witnesses. The testimony for both the parties showed that the pole leaned from the weight of the box; that this leaning of the pole caused the upper wire to sag until it came in contact with the lower wire; that this condition was not sudden but simply due to the gradual leaning of
We have not in any subsequent opinion modified the rule laid down in the Mangan case. In Thomas v. City of Somerset, 30 R., 131, the only question before the court was whether a peremptory instruction to find for the defendant should have been given. The court in that opinion did not have in mind outlining the instructions which should be given on the trial of the case. In Bowling Green Gas Light Company v. Dean, 142 Ky., 682, the Mangan ease is cited and approved, and it is shown that the instructions there criticised were not prejudicial 'to the appellant.
There was sufficient evidence to submit to the jury the question whether the plaintiff had put a wire in the fuse box and thus destroyed its efficiency; but the evidence was conflicting on this subject, and on the whole case we find no substantial error to the prejudice of appellant. The amount of recovery is not excessive if the evidence for the plaintiff is true. Two juries have passed upon the case and have found substantially the same verdict.
The Judgment is affirmed.