Huber v. Twin City General Electric Co.

Brooke, J. (after stating the facts). Defendant contends that the judgment should' be reversed for several reasons: (1) Because the court erred in admitting evidence of the fact that the guy wire had become charged upon two former occasions; it appearing that the defendant upon being notified had at once caused repairs to be made. (2) Because the court erred in admitting testimony that when repairs were made before the accident they were not made properly. (3) Because the court erred in admitting testimony that the lines at the place of the accident were not originally properly constructed. (4) Because the court erred in his charge to the jury. (5) Because plaintiff was guilty of contributory negligence. (6) Because plaintiff assumed the risk. With reference to the first, second, and third reasons assigned, we content ourselves with saying that no error was cqmmitted in admitting the testimony of which complaint is made. It must be borne in mind that through the operation of natural laws the strain upon the mechanism used to hold in place the line carrying the deadly [535] current around a corner was much greater at that point than upon a straight line. It was, of course, the duty of defendant to so construct its line as to reasonably meet this condition. The fact that through the improper location of the guy wire or the breaking of the pin holding the live wire the guy wire had become charged upon at least two previous occasions, was important, and we think competent, evidence tending to show notice to defendant of the dangerous situation at this point, and such evidence does not become incompetent or immaterial as soon as it is shown that the defendant undertook repairs which the event proved to be inadequate. The character of the repairs made was in our opinion likewise the subject of proper inquiry. It appears that, upon the occasion -about two weeks before the day of plaintiff’s injury, Boden, who made the repairs for defendant, found (so he testifies) that the insulation on the live wire was cut or rubbed off, he supposed by swaying and coming into contact with the guy. The repairs made consisted in winding some tape about the guy wire which at that point was very close to, but not touching, the live wire. In view of the facts that the guy had become charged, that it was located in a public street, and that when charged it carried a current of high voltage, we think the question of the sufficiency of the repairs made was clearly one for the jury. It was shown by the plaintiff that the pin carrying the live wire was broken, and that the break was an old one. Boden testified that he did not notice the broken pin when he made his repairs. The jury might very well conclude, however, from the other testimony that the pin was broken at that time. The contention made that, because defendant was about to change its entire construction it owed a less imperative duty in the premises, cannot be maintained. The handling of electrical currents of high voltage is a business extremely hazardous, and those engaged in that business are charged with the duty of exercising a very high degree of care for the protection of life. The charge, to parts of [536] which objection is made, when read as a whole, is, in our opinion, not open to criticism. Assuming that no error was committed in the admission of the testimony of which complaint is made, it correctly sets out the claims of the parties and the applicable law. A more serious question is raised in reference to the assumption of risk. In Chisholm, v. Telegraph Co., 176 Mass. 125 (57 N. E. 383), it is said: “ The danger from an imperfectly insulated wire is the most characteristic risk which a lineman has to encounter. * * * Everybody knows that there always is a chance that the insulation of a wire may become worn off or defective from some cause.” Again, in Britton v. Telephone Co., 131 Fed. 844 (65 C. C. A. 598), the court says: “Linemen must, in the very nature of the occupation, be often required to work alone, or in association with other linemen, and it would seem quite impracticable and unreasonable to send one man as an inspector with another of equal fitness to test a pole before climbed by the latter.” The case of Anderson v. Telegraph Co., 19 Wash 575 (53 Pac. 657, 41 L. R. A. 410), is a case which upon the facts much resembles the case at bar. In that case a lineman of the defendant was injured by coming into contact with a guy wire which had become charged through the breaking of an insulator. It was held that he could not recover, because by the exercise of care he could have discovered the danger In the case of De Kallands v. Telephone Co., 153 Mich. 25 (116 N. W. 564, 15 Am. & Eng. Ann. Cas. 593), this court held that a lineman assumed the risk of all dangers incident to his employment which he actually knew or should know. Again, in Lynch v. Traction Co., 153 Mich 174 (116 N W. 983), it was held that an experienced lineman assumed the risk of injury resulting from his employer’s method of inspection with which he was familiar. The case at bar, however, we think, is distinguishable from those cited and relied upon by defendant. Here the [537] defendant had actual notice of the faulty character of its appliances at the point in question. It is true that the plaintiff by his contract of employment assumed the risk of injury from those dangers which he knew existed, or which in the exercise of care he should have apprehended. The record, however, shows that the office of the guy wire is to maintain the pole in an upright position, and it is supposed to be free from the electrical current. Whether plaintiff should have apprehended the possibility of its being charged and governed his actions accordingly was a question for the jury which was properly submitted. We think, moreover, that the jury might well conclude that, possessing the knowledge which it did possess, it was negligence on the part of the defendant to fail to warn plaintiff of the extraordinary hazard he encountered in climbing the pole in question. After this case was submitted, a motion was made for leave to amend the record in order that the court might consider the question .of the alleged excessive character of the verdict. The motion may be disposed of by saying that, though not properly before us, we have examined the testimony bearing upon the damages, and are of the opinion that a verdict in the sum of $2,500 is not so excessive as to warrant this court in disturbing it. The judgment is affirmed. Moore, O. J., and Steere, Stone, and Ostrander, JJ., concurred.