Zinkiewicz v. Citizens' Electric & Illuminating Co., 53 Pa. Super. 572

Zinkiewicz v. Citizens' Electric & Illuminating Co.

53 Pa. Super. 572 | Pa. Super. Ct. | 1913

Opinion bt

Porter, J.,

The questions presented by this appeal were so fully considered and satisfactorily disposed of in the opinion of the court below overruling the motion of the defendant for judgment non obstante veredicto, which will appear in the report of this case, that we do not deem it necessary to discuss them at length. The plaintiff was injured by coming in contact with a wire used by the defendant *579company for conducting an electric current of 2,200 volts to the manufacturing establishment of one of its customers. This wire had broken and fallen into the public highway along which the plaintiff was passing and had been in that position for four hours before the accident. The plaintiff charged in the statement of her cause of action that she “came inadvertently in contact with a defective, broken or sagged, uninsulated and highly charged live electric light wire, owned and controlled by said defendant, who negligently permitted the same to be and remain for a long space of time in a highly dangerous condition in, over and along the said highway. . . . That the said defendant did not use proper care and skill in constructing and maintaining its poles, wires and other apparatus in a safe condition, but on the contrary negligently constructed and adjusted its wires on its poles and for a long time previous to and up to the time of the injury heretofore stated, negligently permitted its wires to be in a ¡Sagged, broken or defective condition down, in and along the highway.” This was more than a mere averment that the wire was broken, it was an explicit assertion that it had been permitted to remain broken, “down, in and along the highway,” for a long time previous to the accident. No inference of negligence would arise on the part of the defendant from the mere breaking of the wire, in the absence of evidence of defective construction, failure to properly inspect, or of a previous condition of the wire which ought to have visited the company with notice that it was in a dangerous condition, but if the company permitted the wire to remain in the street, after notice actual or constructive of the condition, without taking reasonably prompt steps to avoid danger to those using the street, it would be liable for the consequences. The term “a long time,” when used in referring to the continuance of a peril to those using a public highway, is a relative one. What would be a reasonable length of time, from the lapse of which notice to the party responsible would be inferred, must vary with the character of the peril and the surround*580ing conditions. Constructive notice to a municipality of a slight defect in the pavement of a cartway might not be inferred in so short a time, as in the case of a more deadly or more obvious peril. The character of the peril and the means which the responsible party has, or should have, for obtaining knowledge of its existence must in all such cases be taken into consideration. It was, therefore, entirely proper for the court below to admit the testimony of those duly qualified as experts in the business, tending to establish that if the plant of the defendant company was equipped with the necessary devices, commonly known and, in general use, those in charge of the plant would have immediate notice of the breaking and fall of the wire which carried this deadly current, and that they could at once have turned off the current, thus avoiding all danger to the public. This testimony was in harmony with and supported the allegations of the statement: Smith v. Lehigh Valley Railroad Co., 232 Pa. 456.

The defendant could not escape liability from failure to perform its duty to take reasonable precautions to protect those using the public highway from injury by the electric current which it sent through the wires, by showing that it had been paid by some customer for putting up those wires and that the customer had agreed to notify the company in case a dangerous condition should arise: Daltry v. Media Electric Light, Heat & Power Co., 208 Pa. 403; Mullen v. Wilkes-Barre Gas & Electric Co., 229 Pa. 54.

The judgment is affirmed.