Vannatta v. Lancaster Light & Power Co.

| Wis. | Nov 14, 1916

SiebeoKER, J.

It is argued that the. action of the court in submitting the issues to the jury for determination by special verdict was a ruling to the effect that the evidence permitted of conflicting inferences and required determination thereof by a jury. The record, however, shows that the trial court expressed the opinion; in ruling on defendant’s motion to change the jury’s answers of the special verdict and for judgment in its favor, that the evidentiary facts in the case are without dispute and establish as a matter of law that the defendant’s officers and agents were not negligent m the construction and operation of the electric lighting plant and that the decedent was guilty oil contributory negligence. In the light of this holding of the court the views expressed by this, court in the. case of Gillett v. Flanner-Steger L. & L. Co. 159 Wis. 578, 150 N. W. 987, as to the weight to be given to the decision of the trial court upon issues of fact in trials to a jury, are against plaintiff’s contention. The trial court** dearly held that there was no room in the evidence to permit the jury to find that the defendant was negligent or that the decedent was free from contributory negligence.

The trial court’s decision on the questions of defendant’s-negligence and decedent’s contributory negligence is helpful and persuasive on these points. In his consideration of the evidence on the jury’s finding that defendant was negligent he declares:

“This, as applied to the facts in this case, was a finding that the person charged with the work of constructing this electrical lighting line ought, as a reasonable person, to have foreseen that a young man in a daring mood might climb to the top of a sixteen-foot truss and then in some way to come in contact with the electric wire that was six feet two inches above the truss. Bridges are built by the towns and cities to travel on, not as places upon which to perform venturesome feats. The question that should properly have been in the mind, of the constructor of the' electrical line was: Will any one of the traveling public be at all likely to suffer injury from the electric line as I am constructing it. Evidently with that thought in his mind the work was so done that no traveler upon the bridge could be injured because of the way the wires were strung.

“By their answer to the fourth question the jury found that no want of ordinary care upon tbe part of tbe deceased contributed to produce bis death. Tbis finding under tbe undisputed facts in tbis case is an astonishing one — -that is a better way to speak of it than to say that it is absurd. His-companions who remained in tbe auto protested against this-climbing up to tbe top of tbe truss, for fear that- be might fall into tbe water, but be proceeded. He evidently enjoyed showing bis fearlessness and in startling tbe girls. When be was leaning over tbe top of tbe truss looking at tbe water and called out to them ‘Here comes a fish’ when there was no fish, be bad an object in doing so. Was it to divert their-attention so that be might change bis position and when they looked up again still more startle them by being seen standing on tbe top of tbe truss? Tbis is not an unreasonable supposition, for it is certain some part of bis body either pouched tbe arrow wire or came within two inches of it.”

Tbe court held that tbe provision of sub. 2, sec. 1329a-,. Stats., did not apply to defendant in tbe construction of its-wires over tbe bridge. Tbe statute reads: “. . . and all wires strung upon such poles shall be not less than twenty-four feet above tbe ground at all crossings and not less than fourteen feet above tbe ground at all other places.” The-court held:

“They claim that tbe defendant violated tbe law because tbe arrow wire was only twenty-two feet two inches above tbe floor of tbe bridge and not twenty-four feet as they asserted the law required it should be at tbis place. Why was a. height of fourteen feet above tbe ground deemed sufficient for electric wires except at highway crossings? Obviously because it might be that something of considerable height might be conveyed along a highway, and for tbe prevention of injury from contact with tbe wires it was thought wise to increase tbe height of tbe wires at tbe crossings of a highway by ten feet. But tbe reason for -a height of twenty-four feet does not apply to a bridge so constructed by tbe tying together of its side trusses at their tops that nothing can be conveyed over it that will reach up over sixteen feet. It is also to be considered that tbe arrow wire was attached to tbe poles on each side of tbe bridge at a height of twenty-nine feet three inches from tbe ground, and it is a fact that tbis wire .at the place where the electrical discharge took place was thirty-two feet above the ground beneath it.”

It is considered that the trial court properly held that the provisions of this statute do not apply to the defendant in the construction of its line over the bridge under the facts and ■circumstances shown. We are of the opinion that the judgment of the trial court dismissing plaintiff’s complaint is correct.

By the Court. — The judgment appealed from is affirmed,