Christian v. City of Ames

Evans, J. The name of the decedent was Albert M. Ball. He was in the employ of the defendant city at the time of the accident which resulted in his death. As such employee he was engaged in the work of repair and maintenance of the defendant’s electric light plant. He was engaged, at the time of the accident, in removing the wires of a transmission line from one line of the poles to another. The defendant city maintained a transmission line consisting of two wires between its plant downtown and the Agricultural College, a mile or two distant. Over this line a twenty-four-hour service was ordinarily maintained. The line was insulated for six hundred volts, but actually carried a voltage of four thousand four hundred. While handling these wires, or one of them, for the purpose of changing the location of the same from one pole to another, the decedent was instantly killed by a charge of electricity. The charge of negligence against the city is predicated upon the claim that the city failed to turn off the current of electricity at the time the decedent and others were working upon the wires, and that the decedent was thereby exposed to the danger of handling a live wire of high voltage insufficiently insulated. 1. Master and servant : conligence. I. It is urged on this appeal that the plaintiff failed to prove decedent’s freedom from contributory negligence, and ■ that a verdict, therefore, ought to have been directed in its favor. The decedent was a man of experience in his work, having been engaged with the defendant city for seven years. It is urged, therefore, that he knew as much about the danger to [470] which he was exposed as any agent of the city could know, and that he thereby assumed all of the risk or was guilty of contributory negligence. Ball was under the immediate direction and supervision of one Haverly, and Haverly was under the supervision and direction of one Linebaugh, the manager of the plant. Linebaugh had directed Haverly to have the work done at some convenient time. Haverly had fixed the time and place when and where it should be begun. There was evidence of a usual practice by Haverly to telephone request to the plant to turn off the current from a line when he proposed to put men to work upon it. This practice was not followed at the time in question, and the accident resulted very soon after the beginning of work. The jury found, in effect, that the decedent did not know that the current was on. It necessarily found, also, that he was not negligent in relying upon the performance by Haverly of his usual practice. The trial court instructed the jury that, if the decedent knew, or ought to have known, that the electric current had not been turned off, he was guilty of contributory negligence, and that his administrator could not recover. There is no direct evidence upon the question of his knowledge at this point. But the circumstances of the case are quite significant, and are all consistent with the jury’s finding. We are of the opinion, therefore, that the defendant was not entitled to a directed verdict on the ground of contributory negligence. 2' servant when vice puneipai. II. It is also urged by the defendant that Haverly was only a fellow servant of the decedent, and that his negligence could not be imputed to the city. Haverly was a fellow servant and aided in the work to which the decedent was called. But 'he was charged also with ^ duties in which the decedent had no share. These were the duties of a vice principal, the performance of which was due from the employer to the employee. The rules pertaining to the duties of an employer in such a case are quite elementary, and we need not dwell upon them. [471] The duty of the master to furnish to a servant a reasonably, safe place to work is nondelegable. When it fails, the failure is attributable to the master, so far as the injured servant is concerned. 3. Same: submission of issues, III. Complaint is made of the instructions of the trial court as to its statement of the issues. It is said that the pleadings were substantially copied, and that the statement of the issues was thereby rendered prolix . . and confusing. It is further pointed out that the petition contained nine specifications of negligence, and that the trial court, in a later instruction, withdrew all of the specifications, save four. Because the trial court actually submitted only four specifications of negligence, it is contended that the other five ought not to have been recited at all. We had occasion to consider this question in some fullness in McDivitt v. Des Moines Railway Co., 141 Iowa, 689. See, also, Canfield v. Railway Co., 142 Iowa, 658; Stephens v. Brill, 140 N. W. 809. In the statement of issues, the point to be aimed at is clearness of statement. Any method is to be commended which will lay the issues clearly before the jury. In the McDivitt case,. supra, we held that where issues were about to be withdrawn by the trial court at the close of the evidence, and where such issues had been stated to the jury by counsel in opening statements, and where more or less evidence had been introduced in their support, it might be an aid to clearness for the court to state the rejected issues as preliminary to the statement withdrawing the same. In the case before us there was little room for confusion as to an understanding of the issues. As already indicated, the charge of negligence was predicated upon the broad ground of exposing the decedent to the danger of a live wire of high voltage insufficiently insulated. This broad ground was amplified and split into nine specifications. Each specification, however, was brief. One specification charged the failure to furnish a safe place to [472] work; another a failure to turn off the electric current; another a failure to sufficiently insulate; another a failure to furnish proper appliances for the safe handling of a live wire; another a.failure to warn the decedent of the presence of the electric current; another a failure of the defendant to inspect and discover the dangerous condition, etc. The trial court in its instructions reduced these nine specifications to four in number. It will be seen that all the specifications rested upon the one broad ground, and that they could have been reduced to one broad specification without eliminating therefrom anything of substance. This was all that was done by the trial court in reducing the number to four. Nothing substantial was eliminated. It was a mere matter of reducing the verbiage. The evidence was very brief. It is all contained in less than fifteen pages of the abstract. Upon the whole ease, it is- very clear to us that the jury could not have misunderstood the nature of the negligence charged, whether it was stated in nine specifications or in four. Four was doubtless better than, nine; and one perhaps would have been better, even, than four. 4. same: assumption of risk": instruction. IY. Finally it is urged very earnestly that the decedent was engaged in a hazardous business, and necessarily assumed its risks, and that the accident in question was one of its risks, and that it was not attributable to any neg- ’ __ iigence of the defendant. The trial court gave to the defendant the benefit of full emphasis upon the proposition that the defendant could not be held liable unless its own negligence was proved, and unless the accident was the result thereof. No complaint is made of the instructions in this regard. This leaves nothing for review at this point. • The defendant appears to have had a fair trial. We find no reversible error. The judgment must therefore be— Affirmed., Ladd, C. J., and Weaver and Preston, JJ., concur.