Grimm v. Omaha Electric Light & Power Co.

Epperson, C. Dundee is a village situate immediately west of the city of Omaha. Forty-Ninth street runs north and south through the village, intersecting Davenport street at right angles. The wires of the Omaha Electric Light & Power Company extend along the east side of Forty-Ninth street. There were two wires, a primary or high potential wire carrying 2,300 volts of electricity, and a secondary or low potential wire carrying 106 volts. The high potential wires were on four-pin arms near the top of the poles, and the low potential Avires on tAVO-pin arms about 26 inches lower down. The poles Avere placed so that wires passed through the crown of trees along Forty-Ninth street. At Forty-Ninth and Davenport streets the power company constructed a transformer, and strung a secondary ware from the transformer east along Davenport street to the residence of W. L. Selby. In this manner the company supplied Selby with electricity. Selby’s yard, as Avell as his residence, had been wired and was provided with electric, lights. These lights were connected Avith those in the house and controlled by switches in the dwelling. August 29, 1904, about, 7:30 A. M., Selby observed a disturbance among the wires in his yard, and noticed that the trees to which the wires were attached Avere smoking and sparks were flying from the fixtures. He requested his son, Frank Selby, to go to the switch in the cellar and cut the current. Frank .proceeded to the cellar, but could not see the switch. Thereupon he attempted to turn on an incandescent light. The instant he took hold of the button he received a severe electric shock. After Mr. Selby learned of the accident to his son, he telephoned Wesley Morrison, an independent electrician who had wired the yard, and also called up the company, and notified it that the trees were burning in the yard, and that his son had sustained a shock. Upon receiving this report, George Keebler, as foreman of the power company, directed James O, Grimm, one of the defendant — 389 — company’s employees, to immediately proceed to Dundee, and investigate and remove tlie trouble complained of, stating to Grimm that the information bad been received from Selby’s at 4808 Davenport; that in all probability there was a cross between the primary and secondary wires on Forty-Ninth street; that he should look carefully along Forty-Ninth street as the trees were pretty thick there; and that the trouble in all probability would be found at that point. Morrison reached the premises first. When he observed the trees smoking, it occurred to him that there was a “ground,” and he Avent into the house and cut the current from the yard lights. Upon his return, he began cutting down the Avires in the yard. While thus engaged, Grimm came up and began to assist in removing the Avires. After this Avork was completed, Mrs. Selby called to them to investigate the Aviring in the house. The two men Avent in, and Morrison began Avorldng on a switch, Avhile Grimm stood- by Avatching him. Frank Selby was in the room, and Grimm asked him to show him the light in the cellar where he had received the shock. Frank testified : “When Ave got dOAvn cellar, I walked right around the switch to the \vest, and pointed at it with my finger, and said, ‘That’s the one,’ and he (Grimm) walked- right around to the south, and said, ‘Is this the one?’ and then he grabbed it,” and was instantly killed. An investigation disclosed that the company’s wires had “become tangled together” in the trees along Forty-Ninth street, and that the high potential wires and the low potential -wires were in contact, thus causing 2,300 volts of electricity to be carried along the secondary wire to the Selby residence. The plaintiff, Laura W. Grimm, as administratrix, sued the power company and recovered $5,000 damages for the death of her husband, James O. Grimm. The negligence relied upon is that the poAver company negligently and carelessly constructed the electric wiring leading to the residence of W. L. Selby so that the high potential wires and the low potential wires ran along so close together that they became at times crossed, and negligently ran — 390 — said wires through the limbs of trees so that the high currents were carried upon the low current wires, and in that way conducted into the residences; and that said defendant negligently and carelessly maintained, and continued to maintain, said faulty construction and arrangement of said wires up to and including the time said James C. Grimm was killed. The power company alleged as a defense, and now urges as grounds for reversal, (1) that the company was not negligent; (2)that plaintiff’s intestate was working outside of his employment at the time of the fatal shock; (3) that the accident was one of the assumed risks incident to his employment; and (4) that deceased was guilty of contributory negligence. Of these contentions in their order. 1. We think the company was negligent in placing its wires through the branches of trees along Forty-Ninth street so that high potential wires were within 26 inches of low potential wires. The evidence shows without contradiction that proper construction requires such wires to be at least five feet apart, and, even when so placed, should not be permitted to pass through the branches of trees, thereby endangering contact. The negligence of the company was clearly established by undisputed evidence, and the court should have instructed the jury to that effect. Hence, assigned errors in submitting the question to the jury will not be considered. 2. It cannot be said as a matter of law that plaintiff’s intestate was working outside of his employment at the time of the fatal shock. Grimm, under the directions of Keebler, his line foreman, performed what is called “outside work,” while the “inside work” was in charge of another foreman and different employees. Selby notified the company that the trees in his yard were smoking, and that his son had received a shock. The jury were justified in finding that the company knew that there was “inside” as well as “outside” trouble. Grimm was told by his foreman that the information had been received from 4808 Davenport street — Selby’s residence. Grimm was sent — 391 — alone to remedy the defects. If the company’s division of labor was such that there were men for “outside work” and men for “inside work/’ then certainly an “inside man” should have been sent with Grimm. But such was not the case; Grimm was sent alone. He was justified in proceeding to the Selby residence and removing the trouble reported from that point, no matter what it was. The company had entrusted him with the job. He was at the Selby residence for that purpose, and, when Mrs. Selby invited him into the house to ascertain whether normal conditions had returned, all that he was doing was on behalf of the company and for its benefit. He was not doing this work out of “idle curiosity,” as contended by counsel, but was doing it because it was the duty of the company to attend to such things, and he had been sent alone for that purpose. “The question whether the injured person was acting in the course of his employment is ■for the jury, * * * where a difference of opinion may reasonably be entertained with regard to the proper inference to be drawn from the testimony.” 2 Labatt, Master and Servant, p. 1867; Wood, Law of Master and Servant, sec. 388. 3. Defendant’s third contention is that the accident resulting in Grimm’s death was one of the ordinary risks incident to his employment. A servant by his contract of employment assumes the ordinary risks and dangers incident thereto. Missouri P. R. Co. v. Baxter, 42 Neb. 793; Dehning v. Detroit Bridge & Iron Works, 46 Neb. 556. He assumes risks arising from defective appliances used, when such risks are known to him or are apparent and obvious to persons of his,experience and understanding. Union Stock Yards Co. v. Goodwin, 57 Neb. 138. A servant, however, does not assume the risk arising from his master’s negligence. Chicago, R. I. & P. R. Co. v. McCarty, 49 Neb. 475. Did the fatal accident fall within the ordinary and usual hazards of the business in which Grimm was engaged? Whether it did, we think, is a question for the — 392 — jury. Whatever may he the rule in other jurisdictions, we think the decision of thus court in New Omaha T.-H. E. L. Co. v. Dent, 68 Neb. 674, required the submission of the question, of assumed risk to the jury. In that case it was held: “An employee assumes only the risks arising from the appliances and materials to be used by him or from the 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.” Holcomb, C. J., said in the opinion: “Taking the knowledge and experience of the deceased, as disclosed by the evidence, can it be said that the dangers from the defective or decayed insulation were so apparent that the deceased was negligent in respect of the manner in which he handled the wires he was working with, or assumed these extraordinary risks incident thereto.” In that case an experienced lineman was injured because of defective insulation, while working among wires highly charged with electricity. The defective insulation could have been observed more readily than the dangerous character of the electric light in the case at bar. An employee and the public have the right to assume that the company Avill not charge an incandescent lamp Avith 2,300 volts of electricity. If it negligently does so, it cannot successfully contend that its employee assumed the danger arising from its gross negligence. The authorities are that an employee does not assume, the risk due to his master’s negligence. We think the learned trial court properly left the question of assumed risk to the determination of the jury. The burden of proof was on defendant to establish this defense. Nadau v. White River Lumber Co., 76 Wis. 120. Defendant did not prove that Grimm failed to look for the cross between the Avircs along Forty-Ninth street, or that he could have ascertained the fact that the wires were in contact from a prudent examination of the wires among the branches of the trees. See Bernier v. St. Paul Gaslight Co., 92 Minn. — 393 — 214; Blom v. Yellowstone Park Assn, 86 Minn. 237; New Omaha T.-H. E. L. Co. v. Rombold, 68 Neb. 54. 4. It cannot be said that plaintiff’s intestate was guilty of contributory negligence as a matter of law. It is true, he took hold of the light without insulating himself, and with knowledge that young Selby liad sustained a shock; but he could not presume that the company had negligently charged the fixture with 2,300 volts of electricity. The city electrician testified that one would conclude that young Selby would have been instantly killed had the' fixture been charged with the dangerous current. This, together with the fact, as shown by the record, that it is not unusual for boys and women with soft hands to receive severe shocks from the ordinary current in incandescent lamps, might have led Grimm, or any other prudent man, for that matter, to presume that no serious harm would result from contact with a fixture which is ordinarily free from dangerous currents. Where a young man 21 years of age, and an electrician, had seen the proprietor of a cafe attempt to turn out the electric lights on a chandelier, and, after seeing him draw back on account of a shock received, attempted to turn out the lights, and received a shock from which he died, it was held, in Predmore v. Consumers L. & P. Co., 99 App. Div. (N. Y.) 551, that the question of his contributory negligence was for the jury. The court said that it was true he had seen the proprietor draw back on account of the shock received, but that, on the other hand, it was to be observed that he must have noticed that this shock had not produced any serious effects, and it could not be held, as a matter of law, that he was at fault for supposing that he could turn out the light himself without risk of fatal injury. In an action for deáth caused by an electric current from wires used in lighting a house, where the usual voltage was less than enough to be dangerous to life, whether the deceased was guilty of contributory negligence in handling the wire was a question for the jury. — 394 — Witmer v. Buffalo & N. F. E. L. & P. Co., 112 App. Div. (N. Y.) 698. In tlie Dent case it was held that the deceased’s contributory negligence was not so conclusively proved that there was no reasonable chance of different minds reaching different conclusions, and to have been properly submitted to the jury. Under the rule announced in the foregoing authorities, we think the question of contributory negligence of the deceased was for the jury. It is argued, however, by counsel for the power company that deceased was instructed by his foreman that the dangerous condition in Selby’s residence was probably due to contact of primary and secondary wires in the trees on Forty-Ninth street, and hence he was guilty of negligence in taking hold of !he light with knowledge of this fact. The conversation with deceased before he started for Dundee, as testified to by the foreman of the company, was admitted over plaintiff’s objection. The competency of this testimony is challenged. However, if properly admitted, the record is still silent on one point. It does not disclose what examination Grimm made of the wires along Forty-Ninth street to discover a cross before proceeding to the residence of W. L. Selby. The city electrician, a man of considerable experience, testified that the trees were so thick along Forty-Ninth street that he could barely see the crossed wires. For all that this record discloses Grimm had made a careful examination along Forty-Ninth street, and failed to discover the wires which could barely be seen among the branches of the trees. The burden was on the company to prove that he did not make such examination before appearing at the Selby residence. This it failed to do, and the jury were justified in finding that Grimm had no knowledge of the deadly current in the residence. We do not think the learned trial court was in error in submitting this case to the jury, and therefore recommend an affirmance of the judgment. Duffie and Good, CO., concur. The following opinion on rehearing was filed January 23, 1908. Former judgment of affirmance adhered to: 1. Master and Servant: Injury: Presumptions. The instinct of self-preservation and the disposition of men to avoid personal harm may, in the absence of evidence, raise the presumption that a person killed or injured was in the exercise of ordinary care. 2.-: Assumption oe Risk: Burden oe Prooe. In an action , against a master for negligence, the burden of establishing an assumption of risk is on the master. 3.--: Neslisence: Questions eor Jury. In an action for the death of an employee, held that whether he was guilty of contributory negligence in taking hold of an incandescent lamp charged with a deadly current of electricity, or assumed the risk of injury, was for the jury. By the Court: For the reasons stated in the foregoing opinion, the judgment of the district court is Affirmed.