Citizens' Telephone Co. v. Westcott's Admx.

— 687 — Opinion op the Court by Judge Barker— Reversing. This is an action instituted by Alice Westcott, as administratrix of Edward Westcott, deceased, to recover damages for the death of the deceased, who was her husband, from the effect of an electric shock received by him on August 21, 1905. The appellant, the Citizens’ Telephone Company, and the Union Light, Heat & Power Company, both corporations doing business in Newport, Ky., were made defendants, and charged in the petition with having, by gross negligence, caused the death of Edward Westcott. Both defendants filed answers, controverting all the material allegations of the petition, and pleading contributory negligence on the part of the decedent. These affirmative allegations of the answer were controverted by reply, and the issues thus completed. A trial resulted in a verdict against the Citizens’ Telephone Company for $15,000, and in favor of the Union Light, Heat & Power Company. Prom the judgment based upon this verdict this appeal is prosecuted. The substantial facts are as follows: At the time of his death Edward Westcott was in the employ of the Chesapeake & Ohio Railway Company and the Louisville & Nashville Railroad Company as night gate operator, and was engaged at his business in the watchtower at the railroad crossing on Monmouth street, between Eleventh and Twelfth streets, in Newport, ICy. In the watchtower there was what is called in the record “a block signal telephone box,” which is a part of a line of railroad telephone used by the above-mentioned railroad companies for their private business, but which is owned and operated by the — 688 — Citizens’ Telephone Company. The telephone line had sagged down on John street until it rested upon the highly charged electric wire of the Union Light, Hea.t & Power Company, and had by this contact become itself dangerously charged with electricity, which it conveyed to the telephone box station in the watchtower. As soon as the dangerous current reached the telephone box it burned out the fuse and manifested-itself by a buzzing sound and emitting sparks. This unusual condition of affairs attracted the attention of Westcott, who said to John Shaw, the telegraph operator, who was with him in the tower, that “the thing had a fit;” and he thereupon began a series of experiments, by placing his finger lightly against the box and withdrawing it quickly so as to make the sparks fly from the highly charged box. He also obtained a short piece of insulated wire, and, holding it by the insulated part, he placed the uninsulated ends to the box, making it emit a shower of sparks. This was begun in the early part of the evening, about dusk, and was continued at various times from then until about 2 o’clock, when he was killed. Early in the evening, the witnesses say about dusk, two young men, who saw that the telephone line was crossed with an electric wire on John street, came to the tower and informed the inmates, of whom Westcott was one, of the fact that the wires were crossed, and that the condition resulting therefrom was dangerous. Two policemen, who came into the watchtower during the night, before the accident, saw Westcott experimenting or playing with the charged box. Afterwards, as said before, he placed his hand upon the box in such manner as to receive a shock that caused his hand to involuntarily grip the box, and at the same time he was hurled to the floor, tearing — 689 — the box from its fastening on the wall, and killing him almost instantly. Assuming for the purposes of this appeal that the crossing of the telephone with the electric wire was negligence on the part of the appellant company, is appellee, under the state of facts detailed above, entitled to recover damages for his death? The decedent was 34 years of age, and, so far as this record shows, was a man of at least ordinary intelligence, and his business indicates that he understood something of machinery and the simpler laws of natural physics. It is perfectly plain, from the uncontradicted testimony, that he was at the time of his death not engaged in any duty connected with the telephone box from which he received the fatal shock, but, on the contrary, knowing the abnormal condition with which he was confronted, he was, for his own amusement, experimenting with it as above indicated: The manner in which he made these experiments shows clearly that he appreciated the occult danger connected with his operations; and, in addition, he had been informed early in the evening that the cause of the box being charged was., that the telephone line was crossed with the electric wire, and that this condition was dangerous. John Shaw, the night operator, testified without contradiction that Westcott was present when John Scott and Irwin Zitt brought in the information that the lines were crossed on John street, and the dangerous condition resulting therefrom. The question, then, arises: If all the evidence touching the cause of Edward Westcott’s death shows without, any sort of contradiction that he knew the dangerous condition of the telephone box, and so knowing, without any duty calling him thereto, he deliberately placed his hand on the highly charged — 690 — instrument, and received a shock which, resulted in his death, can his personal representative recover damages? Wé think this question must be answered in the negative. In the case of City of Owensboro v. York’s Adm’r, 117 Ky. 294, 77 S. W. 1130, 25 Ky. Law Rep. 1397, which was a ease in some respects similar to the one under consideration, except that the decedent was an infant, the rule on the question in hand is thus stated: “It is earnestly insisted for the city that there can be no recovery, although it was negligent in having the hot wire in the street, for the reason that the intestate knew the danger and voluntarily took the risk, assuming that, if he stood on the board, the electrical current would not hurt him. This would be true of an adult, but the question is whether the same rule should be applied to an infant 12 years old. ” The courts have gone a long way in saying that the highest possible care should be used by those who manufacture and sell electricity, because the electric current being invisible and silent is difficult to. discover and guard against in advance of its fatal effects; and. while perhaps this reasoning cannot be applied strictly to a .telephone company, which is not engaged in carrying electricity for sale or distribution, but only carries a current, not at all dangerous to human life, for its own purposes, we do not deem it necessary to stop here to draw or point out the distinction between it and the electric light and power companies proper. The rule is so well established that it needs no citation of authoriy to support it that where one knows of a dangerous condition, although it is brought about by the negligence of' another, he cannot idly or wantonly experiment with it at the risk of that other'. The sum total of plaintiff’s evidence, so far as appellant is concerned, is that the decedent was killed by coming in contact with' one of its boxes which had — 691 — become charged with electricity by the crossing of its wire with an eletric light wire. The defendant, without contradiction, showed all the facts we have detailed above with reference to the decedent’s knowledge of the dangerous condition of the telephone box, and the manner of his being killed by wantonly experimenting with a known danger. It seems to us clear that the court should have sustained the motion for a peremptory instruction, made at the close of all the testimony, to the jury to find a verdict in favor of appellant. The judgment is reversed for proceedings consistent herewith. Petition for rehearing by appellee overruled.