92 Neb. 513 | Neb. | 1912
Action to recover for the death of plaintiff’s intestate, Clinton Gilman. In the opinion, for convenience, the defendant Nebraska Telephone Company will be termed the Telephone Company, and the defendant Water & Light Company of Nebraska City the Light Company.
In the brief of the Telephone Company we find the following statement of facts: “The Water & Light Company of Nebraska City has a line of poles, in a certain alley in that city, along and upon which are strung two electric wires carrying a voltage of from 2,000 to 2,200 volts of electricity. These two wires are strung on the top cross-arm between two guard wires. There was also strung on these poles of the Water & Light Company a bare, uninsulated iron wire which had at one time been used as a signal wire in connection with a stand-pipe valve, and had been used on Sundays up to about March, 1908, for the transmission of a low voltage of electricity, and after that it served the Water & Light Company as a guard wire
Plaintiff concedes that this statement of facts is correct as far as it goes. The following additional facts seem to be established by the evidence. On the afternoon of Monday, October 4, 1909, and while working for the Telephone Company painting the ironwork on this pole, Gilman received a slight shock and was burned on the hand by touching this bare wire. He had been told that the wire was “hot” by another Avorkman who had touched it that day when painting. This wire had become charged through coming in contact with another wire of the Light Company at a distance of a little more than a block away. Gilman, who Avas apparently much alarmed by the first shock, immediately reported the facts to George Bauman, the foreman of the Telephone Company, who directed him to cease working upon the pole. The foreman testifies that he immediately went to see Mr. Egan, the manager
In substance, the petition alleges that Gilman was employed by the Telephone Company as a lineman; that he was inexperienced and had no knowledge of the effect that contact between wires heavily charged with electricity or between such wires and metal would have; that it was his employer’s duty to warn him as to the dangers incident to such work, to furnish him with a reasonably safe place to work, to place its poles at a reasonably safe distance from the wires of the Light Company whose poles and wires were in close proximity; that it was the duty of each of the defendants to keep their poles and wires so that the same would not cross, interfere, or come in contact, to keep them properly insulated and stretched so as not to permit them to sag and become loose; that the
The answer of each defendant pleads that the risks of the service were obvious, and were understood, known to, and assumed by plaintiff, and also pleads contributory negligence on his part.
We will first consider the errors assigned by the Telephone Company. The principal complaint made by this defendant is that the court erred in overruling its motion for a directed verdict, for the following reasons: “(a) The testimony fails to show, and does not tend to prove, any negligence upon the part of the Nebraska Telephone Company which was the proximate cause of the injury resulting in the death of Clinton Gilman; (b) the evidence does not tend to establish why and how the injury to Clinton Gilman was received; (c) it is established that Clinton Gilman knew and appreciated the danger of his situation created by the proximity of the bare wire which was near to or abutting against the telephone pole described in the testimony, and that he assumed the risk of injury therefrom; * * * (e) the ground, as alleged in the petition and stated by plaintiff’s counsel in his opening statement to the jury, that defend ant’s foreman promised and assured Gilman that the dangerous situation of which Gilman was informed, and which he re
We cannot agree that the testimony does not show why and how the injury to Gilman was received. The circumstantial evidence upon this point is sufficient. But we are of the opinion that some of the other grounds upon which the motion was predicated are well taken. We think the evidence fails to show negligence on the part of the Telephone Company in placing its distributing pole where it did. The top of the pole was 38 feet 6 inches from the ground. The bottom of the platform thereon is 27 feet from the ground, and the point on the pole opposite the loose wire is 23 feet 4 inches from the ground. The top of the cable box from which the wires emerged for distribution was nearly 10 feet above the burned place on the pole, and hence there was no opportunity for any of the wires of the Telephone Company to come in contact with the wires of the Light Company, and, in fact, such a condition did not occur. There were two cross-arms on the Light Company’s pole beneath the one which carried the dangerous wire, each carrying insulated wires charged with heavy currents. There is no proof that these wires were not properly insulated opposite the pole.
Gilman knew the danger of the situation created by the charged wire which had burned him. The promise which was made to remove the danger was not made, to Gilman by his employer, the Telephone Company, but it was a promise made by the manager of the Light Company to the Telephone Company and communicated to him, and there is no proof that Gilman expected or anticipated that the removal of the cross would be made by the Telephone Company, or that he resumed work upon a promise made
We are convinced that it was not negligence on the part of the Telephone Company to place the pole where it did for the purpose of distributing its wires, nor was this the proximate cause of the injury. Neither is it liable for a failure to warn Gilman of the danger, since he had been told by another employee and warned by the foreman of the danger of working on this pole on account of the proximity of the charged wire. There being no negligence on the part of this defendant, the motion should have been sustained. The other errors assigned by the Telephone Company we need not consider.
Taking up the points presented in the brief of the Light Company, several matters with respect to the admission of evidence are urged as being erroneous. The first is that the plaintiff was permitted to show that, after the accident, a piece of rubber hose had been placed over the bare wire at the place of the accident, and it is argued that to admit proof of subsequent repairs made by the employer is prejudicially erroneous. Unfortunately for this contention, no such evidence is in the record. It does appear (at one place without objection) that a piece of rubber hose had been nailed, after the accident, by the foreman of the Telephone Company upon the pole at a point opposite the bare wire. Since no change was made by the Light Company, this could not be prejudicial as against this defendant. Moreover, the jury were carefully instructed as to how far this evidence should be considered. As to the admission of evidence as to Gilman being usually a careful man, we think this could not affect the verdict, since all the facts as to his actions were before the jury.
It is next argued that the proof fails to show that the Light Company failed to perform any duty it owed to deceased, and that hence negligence on its part has not been proved. It is true that the duties of the Telephone Company and the Light Company to Gilman are not the
This defendant also pleads that Gilman assumed the risks of his employment, and hence that there is no liability on its part. The Light Company owed Gilman, as well as all other persons rightfully using the poles of the Telephone Company, the duty of using no negligence with respect to the upkeep of its wires and poles. The legal doctrine of the assumption of risk arises from the relation of master and servant. Since Gilman was not an employee of the Light Company, he assumed no risks as to the negligence of that company. Moreover, its promise to make immediate repairs had been communicated to him. This defense, therefore, is not available to the Light Company. The Light Company argues that there is no evidence that the wire was heavily charged, and that it may have carried no more than 110 volts. We cannot see that the intensity of the current is of much materiality in this connection. It is apparent that the uninsulated wire was. charged with a current which might be dangerous to
The question whether Gilman was guilty of contributory negligence was submitted to the jury under carefully prepared instructions. They were also permitted a view of the scene of the accident. Whether Gilman was justified in attempting to climb the pole and pass the charged wire in order to reach the platform is a question as to which reasonable minds might differ. The question is a close one, but it is peculiarly one for the jury to determine. Lincoln Rapid Transit Co. v. Nichols, 37 Neb. 332; Cudahy Packing Co. v. Wesolowski, 75 Neb. 787; Grimm v. Omaha Electric L. & P. Co., 79 Neb. 387. We think there is sufficient evidence to warrant a finding for the plaintiff on this point.
The case seems to have been carefully tried and all rights of the Light Company preserved. It was submitted to the jury upon a clear and liicid statement of the law in the instructions. The only prejudicial error we find is that the motion of the Telephone Company for a directed verdict should have been sustained.
The judgment is affirmed as to the Light Company, and is reversed as to the Telephone Company.
Judgment accordingly.