Clements v. Potomac Electric Power Co.

Mr. Chief Justice Shepard delivered the opinion of the-Court: Some time may be saved and possible confusion avoided by resolving the twenty-four assignments of error into comparatively a few propositions, which will now be considered. 1. It was error not to permit the plaintiff to answer a question intended to elicit the fact that he thought or believed the-wires with which he came in contact were old and disused. Evidence had been introduced tending to show that the wires had been in position for years, and that their original weather-proof insulation was hanging in strips; also, that there was nothing-nearby to indicate that they constituted a lighting circuit, and — 495 — that, in fact, they were used to furnish light to two houses only, some distance away. It also tended to show that, when seen just before falling, plaintiff had one foot supported by the pole and his hand upon the wire. This evidence was relevant to the issue of the negligence of one party and the contributory negligence of the other. Aside from the fact that plaintiff may have had the right to presume that the wires conformed to the requirements of the municipal regulation, his knowledge or belief in respect of their actual use at the time was a material circumstance for the consideration of the jury in determining the question of his contributory negligence. 2. It is doubtful if evidence of the general custom of other electric lighting companies throughout the country to use uncovered circuit or primary wires of high voltage would be admissible under any circumstances. McDermott v. Severe, 25 App. D. C. 276, 284, and cases cited. But to admit evidence of such a custom in contravention of the express prohibition of the municipal regulation was clearly erroneous. The Shetland v. Johnson, 21 App. D. C. 416, 421; Richelieu & O. Nav. Co. v. Boston Marine Ins. Co. 136 U. S. 408, 436, 34 L. ed. 398, 408, 10 Sup. Ct. Rep. 934. 3. There having been evidence tending to show that the wires which caused the damage were connected directly with the central power station, and carried an electric current of about 2,000 volts, and that their sole use was to light two houses only and maintain a small incandescent light in an alley adjacent thereto, the plaintiff, in cross-examination of defendant’s expert witness, asked the following question: “If it were desired to supply two residences with electric lights and to light one incandescent lamp, what voltage would be necessary ?” The defendant objecting, the witness was not permitted to answer, and the plaintiff took an exception. Under our view of the effect of the prohibitory regulation, hereafter to be stated,, the evidence sought to be elicited may not have been important ; but in view of the wide range of evidence that had been permitted to the defendant, in respect of negligence generally and of the unreasonableness of that regulation, we think it was ma — 496 — ferial and important, and that its exclusion was error. If the ■answer would have disclosed the fact, which other evidence tended to indicate, that a very low voltage was all that was necessary for the purposes named, and that the dangerous current ■carried had to be reduced by a transformer before its introduction into the houses, by means of what are called service wires tapping the circuit or primary wires, it would have developed a material fact for the consideration of the jury in determining whether the defendant had not been guilty of negligence in maintaining the dangerous voltage of the primary wires, regardless ■of the effect of any regulation. 4. The question of controlling importance raised by the errors assigned relates to the effect to be given to the municipal regulation requiring wires bearing currents dangerous to life to be thoroughly insulated, in determining the negligence of the ■defendant. From the numerous special instructions relating thereto, the giving or refusing of which was excepted to by the plaintiff, we Tave selected several which seem sufficient for all necessary purposes. At the request of the defendant the following were given in ■charge to the jury: “5. The jury are instructed that, even if they should find from the evidence that it would have been useful and practicable to have insulated said wires, as provided in the ordinance in evidence, and that the defendant failed to do this, it would not follow, as a necessary consequence, that the defendant was guilty of negligence, but it would be a fact which the jury might ■consider, with the other evidence, in determining whether the defendant was negligent. “7. The jury are instructed that, whether the stringing or maintaining of the wires, as shown in the evidence, or permitting the insulation to become partially worn therefrom, was negligence on the part of the defendant, is a question for them. And, if they shall find that a reasonably prudent man would have done as defendant did, under all the circumstances of the case, then — 497 — they should find that the defendant was not negligent, and their verdict should be for the defendant. “10. The jury are further instructed that, even though they should find from the evidence that the defendant was negligent in one or both of the particulars mentioned in the seventh instruction, they should still find for the defendant, unless they shall also find from the evidence that a reasonably prudent man, situated as the defendant was and having only the knowledge that it had, would have anticipated that someone would climb the tree and, in that way, come in contact with the wire.” The following, asked by the plaintiff, were refused: “2. If the jury believe from the evidence that at the time the plaintiff was injured the defendant company was maintaining or using an overhead electric wire, or overhead electric wires, within the District of Columbia, conveying or transmitting a current or voltage of electricity dangerous to life, and that said wire or wires were not thoroughly insulated at the time, and that, as a result of the maintenance or use of the same, or any of them, in said condition, the infant plaintiff was injured, then they must find the defendant was guilty of negligence, and their verdict must be for the plaintiff, unless they further find that the plaintiff was himself guilty of negligence which contributed to his injury. “4. If the jury find from the evidence that the electric wire ■or wires with which the plaintiff came in contact, and, as a result, was injured, was, or were, not properly or thoroughly insulated as required by the municipal regulations in evidence, the law authorizes you to infer negligence on the part of the defendant as one of the facts established by the proof. “13. The jury are instructed that, if they believe from the evidence that the defendant could have insulated the wires in question so as to render them reasonably safe to human life, the defendant was not excused from so doing by the mere fact that it would have been expensive to do so, or that it would have required frequent reinsulation, or the frequent stringing of new insulated wires by reason of the effect of the elements on the insulation.” — 498 — The general charge, which was also excepted to, followed the lines indicated by the foregoing and other similar instructions that were given or refused. We are of the opinion that the court erred in granting the several instructions for the defendant, and in not granting the plaintiff’s that is numbered 2. Those given for the defendant were founded chiefly upon the evidence, recited in the preliminary statement, tending to show the imperfections and general inefficiency of the ordinary weather-proof insulation for high-tension wires ; the impracticability, on account of excessive cost and frequent interruptions of service in making changes, and the consequent invalidity of the municipal regulation for unreasonableness; and, also, the general custom of electric lighting companies throughout the country to abandon it and use bare wires where the lines carry a high voltage. We have already said that this evidence of custom in contravention of the requirements of a positive regulation, having all the authority of a statute, was inadmissible. As regards that going to show the unreasonableness of the regulation, we are of the opinion that it fell far short of the weight necessary to justify a court in declaring the invalidity of a regulation enacted by competent authority for the better protection of life and property. Aside from the general insufficiency of this evidence, which brought it within the rule correctly expressed in the thirteenth instruction of the plaintiff that was refused, defendant’s own evidence tended to show that the high voltage of the wires was unnecessary for the purposes to which they were limited in use. Moreover, the wires were within the fire limits, wherein, it would seem, from its general legislation on the subject, Congress intended that all line or primary wires should be carried in underground circuits. The wires in question emerged from a conduit through which they connected with the .power house, and no reason was given why they could not have been wholly carried in conduits, nor was any permit shown for carrying them overhead. Again, it appeared from the testimony of defendant’s witness, Stearns, that in what he called “the city proper,” the — 499 — defendant’s wires carry a direct current in underground conduits the voltage of which is generally 500 volts, while the current in the wires in question was an alternating current similar to that used in lines in the adjacent country (both in the District and Maryland), and of high voltage. The term “city proper” is commonly understood to apply to that part of the city of Washington embraced within the established fire limits. A great deal of this testimony may have been admissible for the express purpose of enabling the defendant to make its point in respect of the invalidity of the regulation, but, with all of it before him, the court should have charged the jury that, as matter of law, it was insufficient to effect that purpose. The regulation aforesaid, being a proper and reasonable exercise of the police power conferred by Congress upon the District Commissioners, plainly imposed a duty upon the defendant for the benefit of the public, considered, also, as composed of individual persons. Each person specially injured by the breach of the duty is entitled to an action for the recovery of his individual compensation. Hayes v. Michigan C. R. Co. 111 U. S. 228, 240, 28 L. ed. 410, 415, 4 Sup. Ct. Rep. 369. It is not essential to this right of action that it be expresslv conferred by the statute or regulation. It follows from the creation of the duty and a breach thereof directly resulting in-damage. The duty and the right are correlative. Lindsey v. Pennsylvania R. Co. (present term) post, 503. Nor is this right of action affected by the fact that the same-regulation imposes a penalty for its violation, recoverable in a criminal action, there being no indication whatever of an intention to make that remedy exclusive. It is a cumulative remedy merely, provided for the compensation of the breach of a duty due to the public also, considered as a municipal body, and. which, to exist, must be expressly given. Union P. R. Co. v. McDonald, 152 U. S. 262, 267, 38 L. ed. 434, 437, 14 Sup. Ct. Rep. 619 ; Couch v. Steel, 3 El. & Bl. 402, 412; Parker v. Barnard, 135 Mass. 116, 120, 46 Am. Rep. 450; Correll v. Burlington, C. R. & M. River R. Co. 38 Iowa, 120, 122, 18 Am. Rep. 22; Queen v. Dayton Coal & I. Co. 95 Tenn. 458, 462, 30 — 500 — L. R. A. 82, 49 Am. St. Rep. 935, 32 S. W. 460; Pauley v. Steam Gauge & Lantern Co. 131 N. Y. 90, 95, 15 L. R. A. 194, 29 N. E. 999; Willy v. Mulledy, 78 N. Y. 310, 314, 34 Am. Rep. 536. Had this public remedy been enforced vigorously and persistently from the time it was given, it is probable that there would have been no occasion for resort to the individual remedy. In view of the facts in evidence in this case, which aré substantially undisputed, we deem it wholly unnecessary to enter upon a discussion of the apparent conflict of State decisions, in respect of whether the breach of a duty imposed by statute constitutes negligence in all cases, negligence per se as it is sometimes called, or a presumption of negligence, or is merely a circumstance from which the jury may or may not infer negligence. If the mere omission to perform the duty is the only negligence proved against a defendant, and the omission of that duty did not proximately contribute to the plaintiff’s injury, it will not constitute negligence in the legal sense; that is to say, negligence justifying a recovery of damages therefor. Shearm. & Eedf. Neg. 5th ed. sec. 467. In special and particular cases it may be sufficient to raise a presumption of negligence which may be overcome, or it may ■constitute but a circumstance of more or less weight, among others, from which the jury would be authorized to infer negligence. However this may be in respect of particular kinds of duties and the special circumstances of cases, if the undisputed evidence shows, or if the jury can from conflicting evidence fairly find, that, without contributory negligence on the part of the plaintiff, the neglect directly resulted in, or was the proximate cause of his injury, negligence exists, as matter of law, and the jury should be so charged. We think that this doctrine is flrmly established by the Supreme Court of the United States in the following cases, notwithstanding some expressions, in one or more of them, occasioned by the character of the statutory duties and the evidence involved; Hayes v. Michigan C. R. Co. 111 U. S. 228, 28 L. ed. 410, 4 Sup. Ct. Rep. 369 ; Grand Trunk R. Co. v. Ives, 144 U. S. 408, — 501 — 36 L. ed. 485, 12 Sup. Ct. Rep. 679; Union P. R. Co. v. McDonald, 152 U. S. 262, 267, 282, 38 L. ed. 434, 437, 443, 14 Sup. Ct. Rep. 619; Deserant v. Cerillos Coal R. Co. 178 U. S. 409, 420, 44 L. ed. 1127, 1133, 20 Sup. Ct. Rep. 967. In Union P. R. Co. v. McDonald, a young lad, in running along a path near an unfenced slack pit, fell into it and was badly burned. The court, among others, gave this charge: “The law made it the duty of the defendant to fence its slack pit, and, if it did not do so, and as a result of its negligence in failing to comply with its legal duty in this regard, the plaintiff received the injuries complained of, the defendant is liable.” In affirming the judgment for the plaintiff, Mr. Justice Harlan, who delivered the opinion, said: “As the facts were undisputed, the question of liability upon the ground of negligence was one of law, and, as the facts showed negligence by the railroad company, which was the primary, substantial cause of the injury complained of, it was not error in the court to so declare.” In Deserant v. Cerillos Coal R. Co. supra, the action was founded on the neglect of the defendant to comply with an act of Congress relating to the proper ventilation of coal mines. Discussing certain instructions of the defendant, for the granting of which the judgment for the defendant was reversed, Mr. Justice McKenna, who delivered the opinion, used the following language, which is specially applicable to the instructions given for the defendant in this case: “We think the instructions numbered 1, 6, and 11, given at the request of the defendant, ignored the obligations of the act of Congress * * * making the duty of the mine owner relative, not absolute, and its test what a reasonable person would do, instead of making the test and measure of duty the command of the statute. The act of Congress does not give to mine owners the privilege of reasoning on the sufficiency of appliances for ventilation, or leave to their judgment the amount of ventilation that is sufficient for the protection of miners. It prescribes the amount of ventilation to be not less than 55 cubic feet per second; it prescribes the machinery to be adequate to force that amount of air through the mine to the face of every work — 502 — ing place. Nor does it allow standing gas. It prescribes, on the contrary, that the mine shall be kept clear of standing gas. This is an imperative duty, and the consequence of neglecting it cannot be excused because some workman may disregard instructions. Congress has prescribed that duty, and it cannot be omitted, and the lives of the miners committed to the chance that the care or duty of someone else will counteract the neglect and disregard of the legislative mandate.” The second instruction asked by the plaintiff was in accord with this doctrine, was strictly applicable to the relevant facts in evidence, and ought to have been given to the jury. With this instruction given, others asked by the plaintiff were unnecessary, and would have tended to confuse the jury. They were, in fact, only prayed in the event of the refusal of the other, and out of abundant, caution. 5. On the question of the plaintiff’s contributory negligence, the court gave the following instruction at the request of the defendant: “14. If the jury shall find from the evidence that the plaintiff saw the wires and touched one or both of them intentionally, ho cannot recover and the verdict should be for the defendant. “15. If the jury shall find from the evidence that the plaintiff might, by the use of ordinary prudence, have seen the wires and avoided touching them, while in the tree or on the pole, he cannot recover, and the verdict should be for the defendant.. “16. If the jury shall find, from the evidence, that the plaintiff saw and noticed the wires, on the day of his injury, before or after going into the tree, it was incumbent upon him to look out for them, so as not to come in contact with them, and if he did not do so the verdict should be for the defendant.” Bearing in mind the requirements of the regulation as regards the thorough insulation of wires “transmitting a current of voltage dangerous to life,” as well as the actual uses of the wires at and before the time of the injury, we are of the opinion that the foregoing instructions did not correctly state the law applicable to the facts in evidence. Plaintiff was entitled to the protection which would be af — 503 — forded by compliance with the regulation, and had a right to presume that it had been complied with, or that the wires were, not used to convey a dangerous current. Union P. R. Co. v. McDonald, 152 U. S. 262, 267, 38 L. ed. 434, 437, 14 Sup. Ct. Rep. 619. Consequently, the sixth special instruction asked by the plaintiff should have been given. It reads: “6. The jury are instructed that the plaintiff had a right to assume that the wires of the defendant passing through the branches of the tree in which he was climbing at the time he was injured were insulated as required by the municipal ordinances in evidence, unless they shall further find that he knew, or should have known, at the time, that the insulation on said wires, or either of them, was defective, and that said wire or wires was or were being used for the purpose of transmitting or conveying a current of electricity.” For the errors pointed out the judgment will be reversed with costs, and the cause remanded, with direction to set aside the verdict and grant a new trial. ■ Reversed.