Nagle v. Hake

WiNSLOW, J. The assignments of error are very numerous, and we shall not treat each one separately, but 'shall endeavor to classify them, and treat each class sufficiently in detail to indicate the conclusions reached on all of the assignments separately. The alleged errors in refusing to grant a nonsuit, and in. refusing to direct a verdict, and in refusing to direct judgment for the defendant notwithstanding the verdict, may all — 261 — be considered and disposed of together. It is said that there is no proof of actionable negligence, nor of proximate canse sufficient to take the case to the jury. With this we cannot agree. In the present day it is a well-known fact that onr streets are full of electric wires crossing and recrossing each other in every direction, and that some of these wires, especially those transmitting light or heat or power, are charged with deadly currents; and it is also well known that when such a wire is naked, either from having lost its insulation or because necessarily in that condition, like a trolley wire, and comes in contact with another naked wire, the second wire also becomes charged with'the current. It requires no college education to know these genei'al facts. Any man actively participating in the affairs of the world, especially in a business which every day necessitates the removal and cutting of such wires, as did the defendant’s business, must be presumed to know something of the dangers which lurk ever near the ' handling of such wires. Erom the very fact of these known dangers he must necessarily be charged with a higher degree of caution and diligence than one who is dealing with sticks and stones ■which can convey no such concealed death stroke. As has been said, the defendant was a house mover. His business required the examination and cutting or other disposal of electric wires almost daily. He necessarily must have known something of the dangers lurking about them, and the possibility of contact with a highly charged wire. We think it was certainly for the jury to say whether, in hanging this wire on the side of the Eagle house, within reach-of a child, and leaving it there, he was guilty of a negligent act, and an. act from which an injury to another was to be anticipated as a natural and probable result. As stated in the statement of facts, the .Julius Andrae & Sons Company was originally joined as defendant in this action on the ground that they were negligent in leaving the unused wire with no one to care for it in the public streets. — 262 — It appeal’s that after the trial bad proceeded for a day or two tbe plaintiff discontinued tbe action as to tbe Andrae & Sons Company, and tbe defendant, Hake, put tbe counsel for tbe Andrae Company on tbe stand, and examined him as to tbe circumstances and reasons of the discontinuance. From this examination it appeared that tbe Andrae & Sons Company paid tbe father of tbe infant plaintiff $500, and received a release from tbe father for tbe damages claimed by him, against tbe Andrae & Sons Company. It further appeared that no release was given by any one on behalf of tbe plaintiff for damages suffered by him, nor was any money paid or agreement made by or' on behalf of tbe plaintiff for such a release, but tbe understanding was that this action should be dismissed, as was in fact done. It further appeared that tbe dismissal was without prejudice, and that there was nothing to prevent another action being begun by tbe plaintiff against tbe Julius Andrae & Sons Company. Tbe defendant, Hake, was allowed to amend bis answer by pleading this alleged settlement as a discharge of all claims against him, and claimed that a verdict should be directed on this ground. The court, however, held that the evidence did not show a settlement of the plaintiff’s claim against Hake, and instructed the jury that, if they found for the plaintiff, they should deduct the amount paid by the Andrae Company from the amount of the damages found, and this was in fact the course pursued by the jury. We have been unable to see any error in this; at least any error prejudicial to the appellant. It was competent for the father to settle his own individual claim for damages on account of his son’s disablement, and the fact that he does so does not affect tbe son’s separate claim. The evidence did not show that any money was paid to the plaintiff, or to any one on bis behalf, on account of his injury, or that any agreement of release, oral or written, was made by the plaintiff, or by any one on his behalf. The understanding that the present action was to be discontinued constituted no release. — 263 — It might have been commenced again at once, so far as appears by the evidence. We do not even reach the question of the effect of the release of one of two joint tort-feasors because there has been no attempt made by any one to release the plaintiff’s cause of action against either defendant. Upon the direct examination of the appellant as a witness in his own behalf he stated that the telephone and electric light companies each had a man at the building as he was ’moving it, who took care of the wires in the street in the way of the building, and either raised them or cut them and put them back again afterwards. He was then asked whether that was the usual custom in moving houses, and also whether, in moving houses, he ever looked after such wires himself; and objections were sustained to both questions. It has not been easy for us to see how the evidence would have been material-in any event, but there are very satisfactory answers to the appellant’s contention of error on these rulings; As to the first question, the witness had not shown that he knew anything about a general trade custom, and he must show that before he can be heard to testify; and as to the second question, it was only directed to the individual custom of the appellant himself, and this was very clearly incompetent. A witness named Zarbock, a lineman employed by the Wisconsin Telephone Company, was called as a witness, and testified to examining the wire and its fastenings after the accident, and on cross-examination was asked whether it was fastened to the insulator on the south side of National avenue in the usual way, and an affirmative answer was stricken out. We have been unable to see what substantial bearing this answer would have in the case, or how the striking of it out was in any way prejudicial. The presumption would be, in the absence of any evidence, that it was fastened in the usual way, and this is as far as the answer went. The appellant testified that Mrs. Nagle was present when he hung the wire on the house, and was then asked whether — 264 — she made objection at that time, and the question was ruled out on an objection. It bad before appeared that botb the father and mother knew that the wire was hanging there before the injury, the mother having testified that she saw Hake roll it up, and a few minutes later saw it hanging on the house. The fact of their knowledge of the whole situation is all that is really material on the question of their negligence, and this fact fully appeared. It would not have been made any stronger by showing that no objection was made. Both father and mother were allowed to testify, against objection, that no one told them the wire was dangerous, and that they did not know that it might become dangerous. We see no error in this ruling. If the negligence of the parents is to be imputed to the child (a question which is not decided) it was proper to ascertain what their knowledge was upon the subject of the danger lurking in this wire; not that their statement of ignorance is conclusive, but simply that it is proper to be shown in considering the question of negligence. They may have been negligently ignorant, but this was properly a question for the jury in view of all the facts. An electrical engineer employed by the Electric Railway .& Light Company was allowed, against objection, to answer .a number of questions as to the voltage carried by the electric light and trolley wires in Milwaukee, as to the effect of contact between wires, as to the insulation of wires and the absence of guard wires, and other facts tending to show the condition of the various wires in the vicinity at the time of the accident. We are not able to understand how it can be reasonably claimed that there was error in these rulings. The facts thus shown throw light on the general situation and the dangers which were present. Whether the defendant should be charged with knowledge of such dangers, or with negligence in not knowing of them, was a question for the jury. One of the plaintiff’s witnesses who had been called to tes — 265 — tify that the Electric Eailway & Light Company maintained a wire on the north side of National avenue covered with what is called “weather proof” insulation was asked on cross-examination whether additional insulation would not he safer, whether there would not he less danger in case of contact with another wire, and whether it was not customary to place guard wires over such wires to prevent contact. Objections to these questions on the ground that they were not proper •cross-examination were sustained, and, it seems to us, properly. They did not legitimately hear on anything upon which the witness had heen examined in chief. We shall spend no further time upon rulings on evidence. While there are some other rulings which are complained of, there are none of them of sufficient importance-to justify derailed treatment. The defendant asked that the following instruction he .given to the jury, and assigns error on the refusal to give it: “I further instruct you, that if you are satisfied hy the evidence in this case that the acts of the defendant Julius Andrae ■& Sons Company in leaving the telephone wire in question suspended in the manner they did was the proximate cause, under the definition and instructions already given you on this subject, of the accident to the plaintiff, it is then your •duty to answer the question as to whether the acts of the defendant Ilahe were the proximate cause in the negative. ¡Another instruction of like tenor, except that it referred to ■the acts of the Milwaukee Electric Eailway & Light Company, was also asked and refused, and exception taken. It is probably sufficient to say with regard to these and several kindred instructions that they express simply the converse of a propo■sition fully given hy the court. The court very carefully defined proximate cause, and charged the jury, in effect, that, in order to find that the negligence of Rake was the proximate <3ause they must be satisfied of the necessary facts by a fair preponderance of the evidence; otherwise they must answer the question whether the acts of Rake were the proximate — 266 — cause in tbe negative. Under tbe charge no doubt could have-been left in tbe minds of tbe jury on this proposition, and,, such being tbe fact, it was not error to refuse to give an instruction stating tbe converse of tbe proposition. Tbe court gave tbe following instruction: “The defendant, William Ealte, in breaking, coiling, and banging tbe dead or uncharged wire on June 20, 1901, is presumed to have known that it was an electric wire, and to-have known and realized the dangerous properties of electricity, and that a higher degree of care was necessary when a thing on account of which an injury may be caused was a highly dangerous one, and that dead electric wires may be-enlivened or become charged with a current of electricity by coming in contact with a charged wire, and that in case any person touched or grasped such a wire it would, or might reasonably be expected to endanger the life or limbs of any person touching it.” The appellant claims this instruction to be erroneous because it requires the exercise of more than ordinary care. We do not so understand it, nor do we think the jury could have so understood it. The court had already defined ordinary care as “such care as the mass or majority of mankind-exercise under the same or similar circumstances.” The sentence now under consideration is elliptical, in that it does-not in terms state with what the care required in handling-electric wires is to be compared; but we think.that none could mistake the idea intended, namely, the idea that greater care-is required in handling such agencies which may be charged with mysterious and sudden death than in handling ordinary substances, and this as we have seen is a correct statement of the law. We have covered all of the assignments of error which seem-to us to be of- sufficient significance to justify special treatment. Wé have carefully examined the other points made by appellant, but have found no errors. By the Court. — Judgment affirmed.