Huber v. La Crosse City Railway Co.

Putney, J. 1. The plaintiff was engaged as a servant of the light company, and using its poles and appliances under the direction of its superintendent, performing an engagement that company had entered into with the defendant — 645 — company to change the location and method of hanging the electric street lamps so that their use and management would not interfere with or embarrass the use and operation of the defendant’s electric railway, for a consideration to be paid by the defendant. Under the circumstances, the defendant was bound to the exercise of reasonable care and caution in the management and control of its railway, and of the electric current which was its motive power, so as not to injure the employees of the light company while engaged in such work. It was bound to avoid acts the natural and probable consequences of which might be to inflict injury on persons thus employed, and, if it omitted such precautions as were reasonably necessary under the circumstances, it would be liable for such damages as any one thus engaged might suffer, being the proximate result of such neglect of duty. The rule was stated by Beett, M. R., in Heaven v. Pender, 11 Q. B. Div. 503, 509, that, “ whenever one person is by circumstances placed in such a position with regard to another that every one of ordinary sense who did think would at once recognize that, if he did not use ordinary care and skill in his own conduct with regard to those circumstances, he would cause danger of injury to the person or property of the other, a duty arises to use ordinary care and skill to avoid such danger.” This principle was referred to in Zieman v. Kieckhefer E. Mfg. Co. 90 Wis. 503, in Bright v. Barnett & Record Co. 88 Wis. 307, and in Thomas v. Winchester, 6 N. Y. 397. In Heaven v. Pender, sugora, Cotton and Bowen, JJ., declined to approve the view expressed by the Master of the Rolls to its broadest extent. But, in the subsequent case of Thrussell v. Handyside, 20 Q. B. Div. 359, 363, the view of Beett, M. R., was expressly approved; Hawkins, J., saying “ that where a man is employed to do certain work, and knows that the work he is doing is dangerous to others and that accidents are likely to happen, and knows that other persons are lawfully en — 646 — gaged in other work and are under obligations to perform such work, the person engaged in the dangerous work is subject to the duty of using reasonable care and taking precautions to prevent accidents arising from the work in which he is engaged.” 2. As was said by FTewmax, J., in Block v. Milwaukee St. R. Co. 89 Wis. 378: “ The negligence is not the proximate cause of the accident unless, under all the circumstances, the accident might have been reasonably foreseen by a man of ordinary intelligence and prudence. It is not enough to prove that the accident is the natural consequence of the negligence. It must also have been the probable consequence.” Atkinson v. Goodrich Transp. Co. 60 Wis. 141, 163; Barton v. Pepin Co. Agr. Soc. 83 Wis. 19; McGowan v. C. & N. W. R. Co. 91 Wis. 147. A mere failure to ward against a result which could not have been reasonably expected, is not actionable negligence. Whether the negligence of the defendant was the proximate cause of the injury, so that it and the result stand in the relation of cause and effect, is a question for the jury, where the evidence is not clear or the proper inference from undisputed evidence is in doubt. It is not, however, necessary that injury in the precise form in which it in fact resulted should have been foreseen. It is enough that it now appears to have been a natural and probable consequence. Lane v. Atlantic Worhs, 111 Mass. 136; Hill v. Winsor, 118 Mass. 258, 259. The evidence on this subject is not conflicting, and the real question is as to the inferences which may be fairly drawn from the evidence, and whether they are in doubt. It appears that the defendant had substantially complied with the statute (Laws of 1889, oh. 375, sec. 1), and by bell insulators and circuit breaks had provided by suitable insulation against injury to persons or property by reason of the leakage or escape of the current of electricity from the trolley wire. The trolley wire and the span wires were sus — 647 — tained at an elevation of about twenty feet in the air. The bell insulators were to prevent the escape of the electric current from the trolley wire, and the circuit breaks to prevent the span wires, if they should become charged from the ■trolley, from charging the iron posts by the sidewalks. All reasonable and proper precautions had been taken, it must be conceded, against any probable injury to persons or property in the streets or on the sidewalks or elsewhere, except, possibly, to those whose duty it was to repair and give suitable attention to the span and trolley wires of the defendant, and the wires of the light company, so far as necessary in the operation of the respective lines. All such persons were understood to be, as the plaintiff was, familiar with the application of electricity to such uses, and with the theory ©f insulation, as well as the use and functions of the bell insulators and circuit breaks. The introduction and use of circuit breaks must be regarded, of itself, to the apprehension and judgment of these trained and experienced operatives, as a signal of danger,— a warning that any given span wire may be charged with a heavy current from the trolley, by leakage or otherwise. They cannot come near a span wire without being thus admonished, and of the general judgment in construction that circuit breaks are necessary to secure immunity from electric shocks and to prevent the iron posts from being charged with an electric current down to the streets. These are all parts of the lines with which they are familiar. It is 'to be considered that they understand the peril and the provided protection as well. The plaintiff was injured because the span wire became charged by coiling, over it and the trolley wire, a portion of the latter, designed to make the curve down Main street. There was no other apparent method of disposing of it for the time being, and no reasonable grounds for supposing that any prudent and careful operative would have failed to notice it under the circumstances; and, if he did not, the cir — 648 — cuit breaks provided protection against the ¿barged span wire, unless he came in contact with the span wire beyond the circuit break and the iron post at the same time. This, we think, the defendant had no reasonable ground to suppose, in the present instance, that the plaintiff would do. The defendant had been operating its railway to the point in question for eight days, beyond which it had not been completed, and the plaintiff had been at work all this time and for some time previous, along the line, in changing the location of the street lamps of the light company, and knew that the trolley wire had been kept charged to operate the railway, and the defendant must have understood that he was familiar with these facts, as well as the near proximity of the iron and wooden poles, and the space between the iron poles and the outer end of the circuit break. These were obvious, facts, and not to be mistaken or misunderstood. The injury could occur in only one way, as the plaintiff substantially tells us, namely, by his bare hand coming in contact with the span wire beyond the circuit break, and his other hand,, or part of his bare person, coming in contact, in the same-instant, with the iron post, so as to pass the electric current, through him. Could the defendant have reasonably anticipated, under these circumstances, the occurrence of an accident such as this ? Ought the defendant to have foreseen it, in the light of attending circumstances? We think not. It clearly appears that the use of the wood'en pole in climbing up or coming down was not dangerous, nor was it possible-for the plaintiff, while climbing or clinging to it, to have received a shock even bjr touching the charged span wire, unless he completed the circuit at the same instant by touching the iron post with his naked hand or person. The-defendant had no reason to expect that an inexperienced operative would have climbed to such a point, much less that an experienced and competent one, with his knowledge of the situation at the only possible point of danger, with the — 649 — warning of the circuit break before him, would practically eliminate it as a means of safety, and, by placing bis body substantially in its place, complete the electrical circuit, so. that the current would necessarily pass through bis body.. - It was not expected that be would have occasion to touch or 1 come in contact with the span wire beyond the circuit break, or the iron post, for any purpose, and certainly not so as to complete an electrical circuit with bis body. Liability for injuries by electric wires in highways is the subject of an extensive note in 31 L. R. A. 566.— Rep. We think the case of Illingsworth v. Boston E. L. Co. 161 Mass. 583, where the right of use was given to the operatives of both companies in common, for that and other reasons is-distinguishable. We hold, therefore, that the evidence did not make a case to go to the jury to show that the negligence of the defendant relied on was the proximate cause of the plaintiff’s injury. By the Oourt. — • The judgment of the circuit court is reversed, and the cause is remanded for a new trial.