221 Pa. 611 | Pa. | 1908
Opinion by
The testimony on which the plaintiff relied to establish negligence on the part of the defendant was this: The defendant, in order to furnish electricity for lighting a dwelling house in a rural district, extended two wires from the top of a pole thirty feet high to a transformer which was fastened to the side of a tank house that was on the top of the dwelling. The pole was on the bank of a country road nearest the dwelling and the wires were 120 feet in length and were suspended thirty feet from the ground over private property. They were from four to six inches apart and seven feet above the roof of the dwelling, and eight inches from the wall of the tank house to which they were fastened. The wires were coated with rubber, over which there was a canvas cover that had become weather-worn and frayed, and in places hung in shreds from the wire! The rubber coating was unbroken except at one place at a bend in the wire near the transformer, where it was worn or broken off, and an inch of the wire was bare. Plow long this inch of wire had been bare was not shown. The defendant employed no one whose special duty it was to inspect the wires, but it was the duty of the linemen, who read the meters monthly and installed meters and transformers and made ordinary repairs, to observe the wires and to repair or report any defects. The canvas on these wires had been frayed and hanging in shreds for three months before the accident. The bare wire could be safely handled by a person standing on a dry board or box, and had been handled with bare hands by the plaintiff’s witness. To touch it while standing on metal or á wet surface was exceedingly dangerous and would probably cause death.
The plaintiff’s husband, James Weir, was a journeyman painter and with two other men, McAfee, a journeyman, and
This was the case made out by the plaintiff’s witnesses and there was nothing in the testimony produced by the defendant that added strength to it or presented it in a different, light. Its witnesses corroborated those of the plaintiff and showed that additional and more specific warnings had been given by Keegan to Weir. The only defect that made the wire dangerous was that it was bare for the space of an inch. The rest of it from the pole to the transformer was safé, although the outer canvas cover was worn and frayed. The-bare spot was thirty feet above the ground, seven feet above the roof of the building over which the wire passed and at a bend near the transformer. This was a place where no one was likely to go except on rare occasions, and the wire was in a position where no one could run against it or touch it accidentally in ignorance of its presence. .
But, if we assume that there was sufficient evidence of the defendant’s negligence to require the submission of that question to the jury, we find no warrant for submitting the question of wanton negligence and the maintenance of a common nuisance, nor for the instruction that, notwithstanding the negligence of the deceased, there could be a recovery if there was
The doctrine of comparative negligence has not been recognized in our state. Any negligence on the part of a plaintiff that contributes to, and is the proximate cause of, his injury defeats his action. There can be no balancing or matching of degrees of negligence. This has been held so rigidly that in Monongahela City v. Fischer, 111 Pa. 9 ; Oil City Fuel Supply Co. v. Boundy, 122 Pa. 449, and Mattimore v. Erie City, 144 Pa. 14, the judgments were reversed because of the use of the word “ material ” to qualify the degree of the plaintiff’s negligence. Railway Co. v. Boudrou, 92 Pa. 475, and Railway Co. v. Rosenzweig, 113 Pa. 519, are not in point, and have no relation to the question. In the first, a passenger riding on the rear platform of a crowded street car was struck by the pole of a horse car following, and it was held that under the circumstances he was not negligent, and that, although his position on the platform made the accident possible, it was a condition and not the cause of his injury. It was said in the opinion, quoting from Creed v. Railroad Co., 86 Pa. 139 : “ The test for contributory negligence is found in the affirmative of the question, Does that negligence contribute in any degree to the production of the injury complained of ? If it does, there can be no recovery ; if it does not, it is not to be considered.” In the second, it was held that the mistake of the plaintiff in getting on the wrong train did not relieve the railroad company from liability for injuries occasioned by the wrongful act of the conductor in putting him off in the dark at a place where there was a network of tracks and switches on which trains and engines were moving. The plaintiff’s duty to ex
We are of opinion that the negligence of the deceased was so clearly established by the plaintiff’s witnesses that a non-suit should have been entered or a verdict directed for the defendant. He knew the wires were charged with electricity, and that they were dangerous. He may not have observed the break in the rubber cover which was before his eyes, nor comprehended its significance, but he was twice warned of the danger, and directed not to attempt to paint above the wires while standing on the roof. Notwithstanding these warnings he persisted in doing the work in the most dangerous manner, and deliberately placed his arm between the wires, which were six inches apart, and attempted to paint the wall above and eight inches back of them. This was simply trifling with a danger of which he was conscious. His death, as in the case of the plaintiff’s husband in Wood v. Diamond Electric Co., 185 Pa. 529, who touched a screen which he had been told was charged with electricity from a defectively insulated wire, “ was the result of his own voluntary and deliberate act.”
The judgment is reversed and judgment is now entered for the defendant.