60 A. 248 | Md. | 1905
This suit was brought on the 2nd day of December, 1902, *649 in the Baltimore City Court, in the name of the State for the use of Barbara Lusby, widow, and Henry I. Lusby, infant child, against the appellant and the Chesapeake and Potomac Telephone Company of Baltimore City, to recover damages for the death of Harry H. Lusby, husband and father of the equitable plaintiffs, which is alleged to have been caused by contact with an electric wire charged with electricity at the corner of Fremont avenue and Portland street, Baltimore.
The declaration states that his death was occasioned by the negligence of the defendant in permitting a wire of the Chesapeake and Potomac Telephone Co. to break and come in contact with one of the feed wires of the United Electric Light and Power Company, the latter wire being improperly and defectively insulated and heavily charged with electricity. And that the defendants were negligent in permitting the wires to become and remain in a condition dangerous to the lives of persons lawfully using the highways of Baltimore, by reason of which default, wrongful act and negligence of the defendants, the equitable plaintiffs have lost the services, society and companionship of their husband and father, and sustained great injury and damage.
On the 8th of June, 1904, there was a verdict in favor of the Chesapeake and Potomac Telephone Company under the instructions of the Court.
On the 10th of June of the same year, there was a verdict in favor of the plaintiff, against the United Electric Light and Power Company the appellant here for nine thousand dollars, divided as follows: six thousand dollars to Barbara Lusby, widow, and three thousand dollars to Henry Lusby, infant, and from a judgment thereon the defendant has appealed.
The record contains thirteen exceptions, twelve of which relate to the admissibility of testimony offered during the trial and the thirteenth was taken to the action of the Court in refusing to grant the appellant's first, first a, second, third, fourth, fifth, eighth and eleventh prayers.
It will not be necessary, however for us to consider in detail all of the exceptions to the testimony offered because some of them can be considered together. *650
It appears that the accident in this case happened on the twenty-sixth day of November, 1902, about 3 o'clock in the morning at the corner of Fremont and Portland streets, Baltimore. No one saw the accident, but the body was found lying on the sidewalk, face downwards and pointing towards the east and about four or five feet from the curbstone on Fremont street; a copper telephone wire was wrapped around the body and he was burned around the neck and left hand. The wire was charged with electricity coming from a feed wire of the appellant company strung some thirty-five feet above the sidewalk. It appears from the testimony that death was occasioned by contact with the telephone wire which had become charged with electricity by falling across the feed wire of the appellant company. The telephone wire was found across and in contact with the insulated feed wire of the appellant company.
We do not think that the facts of this case as disclosed by the record furnish any ground for the conclusion that the death of the deceased was caused by the negligence of the appellant company. There is a failure of evidence to establish negligence on the part of the company and there is no evidence to show a failure on its part to perform any duty that it owed to the deceased.
The first, third, seventh, tenth, eleventh and twelfth exceptions to the admission of evidence are substantially the same and can be considered together. It was error, we think, to have admitted the testimony set out in these exceptions. The effect of the testimony as introduced, was to show that the insulation of certain of the defendants wires was defective at other points and on other occasions than at the point of contact where the accident happened. There was manifestly no connection between the alleged defects and the injury here complained of. The death of the deceased was not caused by the burnings of the wires at other points or on other occasions, but was caused by contact with a telephone wire that had crossed a feed wire of the appellant company on the night of the accident. The testimony therefore was too remote and *651 misleading and presented an issue of negligence not involved in the case. There was also a want of identification of the wires. There was no proof that the flaring in the trees came from the wire which the telephone wire crossed.
There was no error in the ruling of the Court on the second exception as it was competent for the jury to consider the earning capacity of the deceased and the testimony therein admitted tended to establish this fact.
The fourth, fifth and sixth exceptions are practically the same and relate to questions put to the expert witness, Lindsay. The questions embraced in these exceptions, we think were improper, and did not state the necessary facts upon which an expert could base an opinion. They also assumed facts that had not been proven in the case. The objections to these questions should have been sustained.
The eighth exception relates to the refusal of the Court to allow the witness, Russell, to testify to the result of an experiment with a piece of insulated feed wire supposed to be similar to the feed wire in question. The witness was not called as an expert, and stated that he did not testify as an expert on the manufacture of insulation or the manufacture of wire. The experiment made by him was entirely too uncertain and misleading to have been submitted to the jury as a test of the resisting qualities of insulation when wet or dry.
There was no error in the ruling of the Court in the ninth exception in refusing to admit as evidence, a letter press copy of the record sent to Washington of the general condition of the weather in Baltimore on November 25th and 26th, 1902.
This brings us to a consideration of the rulings upon the prayers, which are embraced in the thirteenth exception. The defendant's first prayer which instructed the jury that under the pleadings there is no evidence in this case legally sufficient to entitle the plaintiff to recover, should have been granted and the case withdrawn from the jury.
In City Pass. Ry. Co. v. Nugent,
We do not deem it necessary to discuss the rejected prayers presented on the part of the appellant company, because we are all of the opinion for the errors indicated that the judgment appealed against must be reversed and as it is apparent that the appellees are not entitled to recover, a new trial will not be awarded.
Judgment reversed with costs, without awarding a new trial.
(Decided March 21st, 1905.)
