141 Ky. 805 | Ky. Ct. App. | 1911
Opinion op the Court by
Reversing.
Homer Yonng was a lineman in the service of the Union Light, Heat and Power Company. In July 1909 about two o’clock in the afternoon, a pole crew were engaged in putting in a new pole along one of the company’s lines. After they got the pole set up, they sent for Yonng, as a lineman to come and adjust the line wires to the new pole. This he did. A tree stood near by close to the wires. A limb had broken off the tree and was hanging down over the wire. The foreman then asked Young if he thought he could go up there without touching the wires. Young said he thought he could. The foreman said, “All right, go ahead, but yon. want to watch out and don’t touch the wire or it will kill yon. Those are hot wires.” Young started up the tree, and when he had gotten up about ten feet the foreman again said to him ,“Be sure not to touch those wires as it will kill yon.” He said, “All right, I will watch them.” He continued up the tree and when he got within about a foot' of the wires, the foreman said to him, “"Watch out you are getting too close to those wires. Yon want to go around in the back of that tree so you won’t touch them.” Young said, “All right,” and started to go around on the
“Q. Where had you.got when you first found that there had been an accident?”
“A. Well, about 60 or 75 feet or about, still going up.”
“Q. Did you come back?”
“A. Yes, sir, I heard somebody holler, and I turned around and seen this fellow fall, and then came back. ’ ’
On this evidence and other testimony showing the bad. condition of the wires the ease was submitted to a jury who returned a verdict in favor of the plaintiff for the death of Young in the sum of $8,500.00. The court
The first question arising on the appeal is whether the court should have sustained the defendant’s motion for a peremptory instruction. It is its duty to keep its lines in proper condition and when they get out of order or when limbs fall across them or other troubles occur, it must have men to remedy the troubles. The linemen are employed for' this purpose. It is a hazardous calling but men who follow the calling understand the danger better than others. Young was an experienced lineman. The wires as he knew carried 2,300 volts of electricity, and were palpably dangerous to life if the electricity escaped from the wires and passed through the person of a man. The instruments which Young used in climbing the tree were strapped to his legs, and where the irons touched his legs, the flesh was burned, thus showing that, when his arm touched the wire, the current of electricity passed through his body into the live tree which conducted it into the ground, thus completing the circuit. While it was incumbent on the company to exercise' proper care to keep its wires in condition, it was also incumbent upon it to have the wire repaired when out of order, and to have the limb removed which was pressing upon the wire and manifestly a source of danger. All that it could do when it directed Young to remove the limb, was to apprise him of the peril and if with notice of the danger, he undertook the work, the risk was his; for he could have declined to climb the tree and could have insisted that a ladder be brought or some other appliance used that would have protected him from danger. But when he undertook the work with full knowledge of the situation he took the risk. It is not material here that the limb had been hanging over the wire for a year or that for months the popping at the wire when the limb was swayed by the wind gave notice that there was a defect there. The fact that the company had delayed to remedy the trouble after notice of it, would show negligence on its part making it liable to a third person who had suffered therefrom, but it is not for this liable to a lineman who undertook to do the work and was warned not to touch the wire.
The rule in this State is that if there is any evidence the question is for the jury, and so the case comes to this, was there any evidence that Young was not warned of the danger? It was not necessary that the foreman should tell Young that the insulation was off the wire. It was only necessary that he should tell him that there
The court did not err in instructing the jury that it was the duty of the defendant to exercise the utmost care and skill in the management and care of its wires so as to prevent injuries to its servants or others whose business would necessarily bring them in contact with the wires. We have in several cases approved this instruction. (O’Donnel v. Louisville, Etc., Co., 21 R., 1362; Mangan v. Louisville, Etc., Co., 122 Ky., 476; Cumberland, Etc., Co. v. Graves, 31 R., 972; Lancaster’s Admr.
If on another trial there is evidence to take the case to the jury, the court in lieu of instruction D will tell the jury that if Young knew the danger or was warned not to touch the wire, he took the risk, and the jury should find for the defendant. (Lewis’ Admr v. Bowling Green, Etc., Co., 135 Ky., 611; Capitol Gas, Etc., Co. v. Davis, 138 Ky., 628; Agnes Junior v. Missouri, Etc., Co., 127 Mo., 79.) In that event aláo so much of instruction 2 as follows the words “unless you further believe from the evidence” will be omitted and in lieu thereof these words will be inserted: “That said Homer Young knew the danger or was warned not to touch the wire as set -out in instruction D.”
Judgment reversed and cause remanded.for a new trial.