96 P. 193 | Idaho | 1908
This action was brought to recover damages for the loss of a team and harness alleged to have been caused by the negligence and carelessness of the defendant corporation, in negligently, and carelessly failing to exercise and use proper care, diligence, skill and material in putting up,
The defendant denied the material allegations of the complaint, and set up as a further defense that the damage was caused by unavoidable accident and by the negligence of plaintiff himself. The cause was tried by the court with a jury, and the jury returned a verdict in favor of the plaintiff for $360 and judgment was entered for that amount. The defendant corporation moved for a new trial, which motion was denied by the court, and this appeal is from that order.
Numerous errors are assigned on which a reversal of the judgment is asked. Many of the errors refer to the admission of certain testimony and the refusal of the court to strike out certain evidence, the contention of the appellant being that all of this testimony was not within the issues made by the pleadings, and immaterial and irrelevant for that reason. The basis of this contention is that the complaint sets forth some particular acts of negligence, and it was error to admit evidence of other negligent'acts on the part of the defendant.
In order to fully present this matter, it will be necessary to set forth some of the allegations of the complaint.
After alleging the corporate existence of the appellant, it is alleged that said appellant in conducting its electric light and'electric power business, had erected a receiving and distributing plant, and had strung poles along the streets and alleys of the village of Blackfoot, and strung upon the said poles a system of wires, appurtenances and appliances charged with a certain dangerous and life-destroying fluid and current, known as electricity; that' in January, 1895, the said corporation, “its agents, servants and employees, negligently and carelessly constructed a system of wires and electric lights in plaintiff’s livery barn in said village, for the purpose of lighting said barn, and negligently and carelessly attached
The complaint further alleges as follows: “And by reason of the defendant, its agents, employees and servants failing to use and exercise proper care, diligence, material and skill in putting in, operating, inspecting and maintaining its plant, wires and other appurtenances as aforesaid, did on the 18th day' of January, 1906, and without fault of plaintiff, negligently and carelessly permit a dangerous, unusual and excessive current of electricity to pass into and through said defective system of wires in plaintiff’s said livery barn, and thereby carelessly, unlawfully and negligently allowed one of said wires in said bam to become burned, broken and to fall down in said livery barn, and that while said wire, charged with electricity, was hanging, and without the fault of, or any contributory negligence on the part of plaintiff, said broken and hanging wire came into contact with and struck two horses belonging to plaintiff, and threw said .horses to the floor of said bam, killing both of said horses, and tearing and burning the harness thereon, to plaintiff’s damage in the sum of $375; that by reason of the defendant, its agents, servants and employees negligently and carelessly, permitting said unusual, excessive and dangerous current of electricity to pass into and through the said system of wires, so constructed by defendant in plaintiff’s said livery barn as aforesaid, the defendant, its agents, servants and employees did on the 18th day of January, 1906, negligently, carelessly and unlawfully,
It appears that a “cross” of wires occurred outside of the barn, and by reason of that fact the dangerous condition existed in the barn, and the plaintiff was permitted to introduce evidence, over the objection of the appellant, to the effect that he tried to get the appellant’s office by telephone but could not get it, and then went to the appellant’s substation and office and found no one there, and tried to find appellant several times but could not until after the accident had occurred. In fact, the evidence objected to shows that said wires became crossed about 2 o’clock in the afternoon and remained so for two hours.and a half, until the accident occurred, and said evidence shows that if the appellant had had an agent in its substation whom the plaintiff could have notified of the condition of the wires, the current could have been turned off and no damage would have been done.
Counsel for appellant insists that all of this testimony is entirely outside of the pleadings; that defendant is charged with negligently constructing, putting in and maintaining a defective system of wires, defective because of improper fuse plug, insulation, etc., and by reason of same an unusual current was permitted to enter the building, doing the damage alleged. Counsel contends that there is nothing anywhere to give notice that- respondent relied upon the alleged absence of the defendant’s agent from the office or that such was negligence.
There is nothing in this contention. The allegations of the complaint fully warrant the introduction of any testimony tending to show the carelessness and negligence in the appellant’s erecting, operating and maintaining its said system or plant. If the plant was negligently operated by reason of a failure to have employees in charge thereof at all times, under the allegations of the complaint, evidence of the fact that they did not do so was competent. However, in support of appellant’s contention, counsel cites Haner v. Northern Pac.
It appears from all of the evidence that after the wires crossed or got out of order, that the excessive current went into the barn and that if defendant’s agent could have been found, the current could have been turned off and the accident prevented. This evidence was introduced to show the negligence in turning a dangerous agency loose without having a proper person in charge. This evidence was competent to show negligent operation of the appellant’s plant.
We have gone carefully over the assignments of error in regard to the admission and rejection and refusal to strike out certain testimony, and we find no error in the record in that regard.
Counsel for appellant contends that the court erred in giving and refusing to give certain instructions to the jury. We have carefully examined the instructions given by the court, and we think they amply cover the case when applied to the evidence, and we are of the opinion that the instructions requested and refused should not have been given, and that the court did not err in refusing to give them, as part of said requested instructions were embodied in those given and the remaining parts were properly refused.
It clearly appears from the testimony that there was carelessness on the part of the appellant in the erection, operation and maintenance of its said plant. Electric companies are held to the highest degree of care practicable to avoid injuries to persons who may accidentally or otherwise come in contact with their wires. Electricity is recognized as one of the most
We find no error in the record, and for that reason the judgment must be affirmed, and it is so ordered. Costs are awarded to the respondent.