Staab v. Rocky Mountain Bell Telephone Co.

AILSHIE, C. J. — This action was prosecuted by the widow and minor children of Walter R. Grove, deceased, for the recovery of damages sustained on account of his death.' Verdict was rendered and judgment entered for the aggregate sum of $15,000, $3,000 in favor of the widow, $5,500 in favor of Mary L. Grove, and $6,500 in favor of Alice C. Grove. The defendants appealed. The action was commenced against the Rocky Mountain Bell Telephone Co. and the Idaho-Oregon Light & Power Co. A motion was subsequently made to require the plaintiffs to elect as to which company they would proceed against and the plaintiffs elected to proceed against the Idaho-Oregon Light & Power Co. and dismissed as to the telephone company. Walter R. Grove was an employee of the Rocky Mountain Bell Telephone Co. at the time of his death and was working at the monthly salary of $85 and discharging the duties of “trouble man.” His regular working hours were from 7:30 in the morning to 5:30 in the evening, but it appears that he was subject to duty whenever occasion required, whether in or out of regular working hours. On the evening the accident occurred, about supper-time and during twilight, he went with another employee of the company to make an inspection of a line between Thirteenth and Fourteenth streets in Boise City. The telephone poles and electric light poles both stood along the same alley and on the same side of the alley, and the two poles were only about eleven inches apart. The wires on the telephone pole were several feet above the electric light wires. Grove climbed the telephone pole and sat on what is called the messenger wire or cable, and exam [321] ined the “messenger can” on the pole, his feet hanging down toward the electric light wires. He finished his inspection and was raising up to inspect the “aero” wires, and the next that was seen of him was a few seconds later when his companion and assistant saw him lying .across the primary or transmission electric light wire, which was sizzling and burning his body, and this wire soon broke and the deceased turned a somersault in the air and fell on the roof of a shed in an adjacent yard. The electric light wires consisted of a primary or transmission wire and an are wire and a number of secondary or distributing wires. The primary or transmission wire carried a current of 2,300 volts; the arc wire a current of 2,000 volts, while the secondary or distributing wires carried a current ranging from 115 to 200 volts. The primary wires appear to have been insulated. The-others seem not to have been insulated, or, at least, if they had been insulated, the insulation had ceased to be of any protection or value. 1. As to whether or not the proper care and precaution had been taken by the light company to insulate these wires to guard them against employees and innocent persons who might be working about them, was one of the facts on which there was a conflict of evidence, and this was submitted to the jury and has been passed upon by them. The appellant was engaged in the business of generating, transmitting and distributing the most dangerous and least understood article known to the business or commercial world, namely, electrical energy — an unseen force, and it was chargeable with the legal duty of so handling it as to protect the public and especially those who might be called upon to come near or in contact with its wires from dangers they could not see and which they might readily overlook. (Eaton v. City of Weiser, 12 Ida. 544, 118 Am. St. 225, 86 Pac. 541; Newark E. L. & P. Co. v. Garden, Admr., 78 Fed. 74, 23 C. C. A. 649, 37 L. R. A. 725.) It is extremely doubtful if the appellant company exercised the care in protecting its wires'that it should have exercised in this instance. It allowed its wires to be in close proximity to the telephone wires, and it was [322] chargeable with notice that linemen would be compelled to climb the telephone poles and work among the telephone wires. 2. It is contended that there is no evidence as to the manner in which deceased met his death. On this question the evidence is not positive and direct. The circumstances, however, went to the jury and were sufficient to justify them in concluding that it was caused by an electric shock. The deceased had an electric burn on one of his heels, and it is argued by counsel that he received such a shock from one of the company’s wires as to cause his muscles to relax and precipitate him from the messenger wire on to the main wires where he was electrocuted. It is clear that his death resulted from his contact with these live wires. No one can be positive, however, as to the cause of his falling. That might have been an accident on his part or it may have been caused, as suggested by counsel, by a shock received from the secondary wires. The bum on his heel would tend to strengthen the latter presumption. "Where death was almost instantaneous, as in this case, and no one could see or positively know the cause which precipitated deceased on this live wire, it is the duty of this court to presume that the person who lost his life under such circumstances exercised reasonable care and precaution in an effort to preserve his life and that he did not expose or subject himself to injuries and risks that he might reasonably have anticipated or expected would inflict mortal injuries. (Adams v. Bunker Hill etc. Mining Co., 12 Ida. 648, 89 Pac. 624, 11 L. R. A., N. S., 844; Fleenor v. Oregon S. L. R. Co., 16 Ida. 803, 102 Pac. 897.) The evidence was sufficient to justify the jury in concluding that the deceased came to his death from an electric shock received from the appellant company’s electric wires. 3. It has been argued that the deceased was a mere licensee or volunteer on the telephone company’s property at the time he received the fatal injury and was not engaged in the line of his duty, and that therefore no recovery can be had. The evidence shows that the deceased was a “trouble man” in the employ of the telephone company and that such an employee “is supposed to be on duty at all times when needed..... [323] A trouble man works for so much per month and is subject to duty whenever occasion requires.....He is supposed to be the guardian of maintenance conditions, that is, he clears trouble, repairs irregular conditions, inspects for irregularities, and, if possible, cleans them up.” The evidence adduced on the trial was sufficient to justify the jury in concluding that the deceased was engaged in the line of his 'duty when he met his death. 4. The question of contributory negligence was properly submitted to the jury and their finding thereon has support in the evidence. The burden of proving contributory negligence was on the defendant. (Sec. 4421, Rev. Codes; Adams v. Bunker Hill etc. Mining Co., 12 Ida. 642, 89 Pac. 624, 11 L. R. A., N. S., 844; Goure v. Storey, 17 Ida. 360, 105 Pac. 794; Rippetoe v. Feely, 20 Ida. 619, 119 Pac. 465.) *5. There was no error in dismissing the case as to the telephone company. The dismissal can in no way work to the prejudice or injury of the light company in any claim that it might have against the telephone company on account of this judgment or the accident which led to the judgment. 6. "We find no error in the instructions of the court or in the rulings of the court on the admission of evidence. 7. We do not consider the verdict sufficiently large to justify this court in either reversing the judgment or reducing the amount. It should be remembered that this judgment represents the loss sustained both by the widow and the two minor children, a total of $15,000 for three persons dependent upon his earnings and support, and the deceased was a man in good health and thirty-two years old at the time of his death. This verdict is not out of proportion or harmony with verdicts approved by this court in Anderson v. Great Northern R. R. Co., 15 Ida. 513, 99 Pac. 91; Maloney v. Winston Bros., 18 Ida. 740, 111 Pac. 1080; Walsh v. Winston Bros., 18 Ida. 768, 111 Pac. 1090; Maw v. Coast Lumber Co., 19 Ida. 396, 114 Pac. 9. We conclude that the judgment should be affirmed, and it is so ordered. Costs awarded in favor of respondent. Sullivan and Stewart, JJ., concur.