New Omaha Thompson-Houston Electric Light Co. v. Dent

Albert, O. On the 2d day of August, 1900, Thomas R. Dent commenced work as a lineman for the New Omaha Thompson-Houston Electric Light Company, which at that time owned and operated an electric light system in the city of Omaha. On the same day, in the course of his employment, he was engaged in fastening wires on insulators on the crossbars of a pole, upon which a number of wires were strung, radiating therefrom to the four points of the compass. The wires were strung on four sides of the pole, and wires of different polarity were on each of the four sides. The insulating material on the wires was old and rotten, and while Dent was fastening one of the wires to the glass insulator, the insulating material on the wires broke or cracked on the side of the glass insulator opposite to him, as he supported himself at work on the pole at some distance from the ground. In attempting to fasten another wire, he used á pair of iron or steel pliers to handle it. While thus engaged his elbow came in contact with the other wire at the point where the insulation was cracked or broken, and the wires being alive and of different polarity, the current passed through his body and killed bim. The widow of the deceased was appointed administratrix of his estate and brought this action against the electric light company for damages on account of the death of her husband, charging that death was caused by the negligence of the defendant company. The petition contains three specifications of negligence: (1) the use of wires on which the insulation had become, old and unsafe; (2) placing wires of opposite polarity on the same side of the poles upon which the deceased met his death; and (3) not cutting off the current from wires on which the deceased was at work when killed. The answer [670] denies any and all negligence on the part of the defendant, and charges contributory negligence on the part of the deceased. The reply is a general denial. The jury found for the plaintiff and judgment was given accordingly. The defendant brings error. The court, among other things, instructed the jury as follows: “10. An employee is under the same legal duty to care for his own safety that his employer is to provide for his protection from accidents. It was the duty of James R. Dent while in the performance of his work as a lineman to exercise ordinary and reasonable care and caution under the circumstances of his situation to avoid electric shocks and consequent death. While he had a right to assume that the defendant had used ordinary care and diligence to make it reasonably safe for him to work on live wires, yet he was not at liberty to close his eyes to defects of insulation which were open and obvious, or which he might have seen by using ordinary and reasonable care and caution. If you believe from the preponderance of the evidence that the insulation on wire called No. 2 was broken by said Dent when he tied said wire around the glass insulator; and if you further find from the preponderance of the evidence that said break in the insulating material on said wire was open and obvious to said Dent, or that he ought to have seen "it by an exercise of ordinary care on his part before he attempted to tie on the next wire; then your verdict must be for tbe defendant, even though dependant might have been negligent.” The defendant insists that the verdict is contrary to the foregoing instruction, because the evidence is undisputed that the break or crack in the insulation, which permitted the deceased’s arm to come in contact with the wire, was on the top of the turn in the wire and in full sight, so that if he did not see it, he should have seen it aud protected himself against it. But there is sufficient evidence to sustain a finding that the insulation on this wire was about ten years old; that the ordinary life of [671] insulation is from three to four years; that the use of such wire by the defendant was negligence; and that if insulation had been reasonably good, the break would not have occurred. Now, while it is true that the employee assumes the ordinary risks incident to his employment, it is also true that he has a right to assume that his employer has taken due precautions to insure his safety. The deceased was a.t work on a pole some distance from the ground; his feet rested on a crossbar, and he maintained his position by means of a supporting belt; the wire on which the break occurred was about opposite his shoulders, and another wire passed between his body and the pole. In order to see this bréale he would have had to lean forward and look around or over the glass insulator on which the wire was fastened. The break of the insulation, therefore, was not obvious in the sense that it was directly within range of his vision. As before stated, he had the right to assume that his employer had taken due precautions to insure his safety. Acting on that assumption, he was not required to guard against dangers arising from the use of defective material or appliances, and it can not be imputed to him for negligence that he failed to look for a break in the insulation, which would not have occurred had his employer taken' due precautions to insure the safety of its employees. But it is urged that he knew the insulation was defective, because he had called attention to it in the forenoon, and had been told that it could not be trusted. But the evidence on this point is that at another point on the line and some hours before the accident, the deceased had called attention to the fact that the insulating material was hanging in strips from the Avire at this point, and was then told that it was' defective and unsafe. But the defect at that point was patent and of a character to arrest the attention of ordinary persons, because, as before stated, it was hanging in strips from the wires. But there is no evidence that the insulating material on the wires at the point where the accident occurred Avas obviously defective, or that there [672] was anything about it to indicate to a person not an expert that it was old or unsafe. It is contended, however, that the deceased was an experienced man and must have known from the appearance of the insulating material on the wire on which he was engaged that it was old and defective. The evidence does show that the deceased was an experienced lineman, but it falls far short of showing that his experience was of such a character as to enable him to judge -of the age or quality of insulating material. In fact, it does not appear that he had any experience with insulated wires, or wires carrying dangerous currents. His experience, so far as is disclosed by the evidence, was confined to telephone and telegraph lines. Neither the pleadings of the plaintiff nor the evidence in support thereof disclosed any negligence on the part of the deceased. Therefore, on the question of contributory negligence, the burden of proof was upon the defendant. That being true, in the face of an adverse verdict, the complaint that a finding involved therein is not sustained by sufficient evidence is unfounded, unless the evidence on that point is of such a character that the only reasonable inference to be drawn therefrom is that the negligence of the deceased directly contributed to the injury. The evidence before us is not of that character. The defendant contends that the second and third specifications of negligence in the petition are not sustained by the evidence. As to the third, the court directed a finding in favor of the defendant, so it requires no further notice. As to the second, there is evidence sufficient to sustain a finding that had only wires of the same polarity been strung on the same side of the pole, the accident would not have occurred. It is true there is a substantial conflict in the evidence as to whether it would have been practicable or advantageous to put only wires of the same polarity on the same side of the pole. But the gist of the action is whether the defendant did or omitted to do that which a man of ordinary care and prudence, under like circumstances, having a due regard for the safety of his [673] employees, would not have done or omitted, and whether the injury complained of was the proximate result of such act or omission. Such questions, on the record presented, are questions of fact, and having been resolved against the defendant on conflicting evidence, the findings should not be disturbed. The defendant complains of the refusal of the court to give the following instruction: “The jury are instructed that if the insulation upon the wires on this pole upon which Dent was injured, which wires have been designated in the testimony as Nos. 2 and 3, Avas rotten and brittle, and for that reason liable to crack or break upon bending around the glass insulators on the arms, and this fact Avas known to Dent when he undertook to attach the wires Nos. 2 and 3, and Avith this knoAvledge Dent undertook, without protest to this defendant, to attach said Avires to said insulators, the plaintiff herein can not complain of the condition of the wires as to insulation, and as to that issue you will find for the defendant. “By knowledge is meant not only what Dent actually knew but Avhat, from the knoAvledge of insulation on that subject he possessed either from experience, observation or the warnings or cautions of creditable persons he ought to have, known.” This instruction is practically the same as the paragraph hereinbefore quoted, given by the court on its own motion, consequently it was not error to refuse to give the one in question. The defendant, tendered instructions to the effect that if the deceased kneAV that the wires with and among Avhich he was working were live wires, and proceeded to his work without protest, the jury should find for the defendant as to the third specification of negligence. These instructions were refused and rightly, because, as we have seen, the court of its OAvn motion directed the jury to find agaifist the plaintiff as to that specification. Other instructions were tendered to the effect that if the [674] deceased knew that wires of different polarity were strung on the same sides of the pole on which he was working, and proceeded with his work without protest, the jury-should find for the defendant as to the second specification of negligence. The court refused to give these instructions, hut submitted a special interrogatory to the jury as to whether the deceased knew that wires of different polarity were strung on the same sides of the pole. The jury answered that interrogatory in the negative and their finding on that point is sufficiently sustained by the evidence. The jury having specially found that the deceased did not know such fact, the refusal of the court to give the instructions covering that hypothesis, was error without prejudice. 1. Contributory Negligence: Instruction. Whether plaintiff’s intestate, an experienced lineman with telephone and telegraph wires, had such knowledge and experience respecting the handling of wires charged with heavy currents of electricity and used for lighting and power purposes, and of the character and pliability of the insulation thereon as to its being brittle and liable to break when twisted in fastening because of age and wear, and whether he acted without due care and caution under the circumstances and was chargeable with contributory negligence, held, not to be so conclusively proved as that there is no reasonable chance of different minds reaching different conclusions, and to have been properly submitted to .the jury for its determination. 2. Employee: Assumption on Risks. An employee assumes only the risks arising from the appliances and materials to be used by bim or from tbe manner in which the business in which he is to take part is conducted, when such risks are known to him or are apparent and obvious to persons of his experience and understanding. Union Stock Yards Go. v. Goodwin, 57 Neb. 138. [674] Numerous other errors are assigned, but the foregoing shows only the assignments argued. It is recommended that the judgment of the district court be affirmed. Duffie and Ames, CC., concur. By the Court: For the reasons stated in the foregoing opinion, the judgment of the district court is Affirmed.