Hayden v. Carey

The following opinion was filed November 13, 1923: Doerfler, J. The break in the wire was not discovered until the time of the accident, and while there was no evi — 535 — dence of an eye-witness establishing the cause of such break, nevertheless we are of the opinion that sufficient facts had been proven from which the jury could readily infer that the apple tree in falling struck the wire, breaking it, and causing it to rest, when the accident occurred, upon the broken branches located between the trunk of the tree and the nearest electric light pole. The broken end of the wire through which the power was transmitted, which caused the injury, was approximately of sufficient length to enable it to rest upon the branches referred to, and when the branches were removed the contact of the wire with the branches was released, explaining the position in which the wire was suspended after the accident. The various grounds' of negligence referred to in the foregoing statement of facts, and others, were submitted, on proper evidence, to the jury; and the jury by its answer to the first question of the special verdict found as defendant’s sole negligence the failure to' properly maintain his electric line. The jury having failed to‘ answer subdivisions (a), (b), and (d) of the first question of the verdict, such failure is tantamount to a negative answer in each of these particulars. Therefore we must conclude that the effect of this verdict results in an acquittal of the defendant of negligence in all respects excepting only with reference to the one where negligence was affirmatively found. The evidence also is undisputed that at the time of the accident the line was substantially in the same condition, with the same equipment and appliances, as it was in at the time of its construction in the year 1915, and that at all times it was operated in the same manner. This leaves for our consideration solely the following questions: 1. Was there any credible evidence in the case supporting and sustaining the jury’s answer to the question as to negligence in the maintenance of the line? 2. Assuming that the jury’s answer to subdivision (c) of the first question is properly sustained by — 536 — the evidence, was such negligence the proximate cause of the injury? 3. Was the plaintiff guilty of negligence which proximately contributed to his injuries? Electricity is an invisible power which, if handled without proper precaution, is inimical and dangerous to- life and limb. Therefore it was held in Nagle v. Hake, 123 Wis. 256, 101 N. W. 409, that for the prevention of accidents by electricity it is necessary that a high degree of watchfulness and care be exercised. See, also, Lomoe v. Superior W., L. & P. Co. 147 Wis. 5, 14, 132 N. W. 623. In 29 Cyc. 425, it is said: “This duty [meaning the duty to exercise proper care] may also arise out of circumstances; and this is especially true where a person is using or dealing with a highly dangerous thing which, unless managed with the greatest care, is calculated to cause injury to bystanders, where ah owner has reason to apprehend danger owing to the peculiar situation of his property and its openness to accidents.” And on page 428 it is said: “The greater the risk or danger, the greater must be the care. What is ordinary care in a' case of extraordinary danger would be extraordinary care in a case of ordinary danger.” It will appear from the evidence that on the day of the accident a heavy storm raged during a large portion of the day in the locality of this line. The rain fell during a great portion of the day, and during certain periods the storm became violent and cyclonic. At 11 o’clock in the morning the storm raged violently, and at about 1 o’clock in the afternoon it reached such force as to cause the breaking down of trees and branches. The storm in a degree resembled a hurricane and was accompanied by violent lightning and electrical display. At about 2 o’clock in the afternoon it was observed that the apple tree in question had been broken down. From about 2 o’clock until about 3:30 o’clock p. m. there was a marked cessation of the storm, after which — 537 — it again continued to rage with great force until about 4:30 o’clock in the afternoon. The accident happened shortly before 5 o’clock p. m. It therefore appears to us, in view of the jury’s verdict and of the evidence in the case, that we must be primarily concerned with the negligence of the defendant, if any, in failing to ascertain timely the fact that a charged wire had been broken down prior to the time of the accident, and in failing to shut off the current timely so as to avoid the happening of an accident like the one complained of. Where wires become disarranged as the result of an unusual storm it is the duty of the owner of an electric light plant to make immediate repairs, and after a storm of any considerable vigor, although it is not of extraordinary violence, an owner is bound to anticipate that its system may be out of order, and it is incumbent upon him to make an immediate inspection thereof as soon as practicable. Curtis, Electricity, sec. 476. Where an electric telephone wire had been burned in the evening preceding the accident, causing the ends of the wire to be suspended from the poles, and where a person came in contact with it the following morning, it was held that the company was negligent in not making an inspection during the night. Brown v. Consolidated L., P. & I. Co. 137 Mo. App. 718, 109 S. W. 1032. The doctrines and rules thus laid down by the text-books and authorities above referred to seem to be well fortified and established by the decisions in this country and have a tendency to protect human life and limb. There is also evidence in the case that it is customary for electric companies, after a violent storm, to make immediate inspection of their lines. The evidence also shows that it would be feasible and practicable for the company to make proper inquiries b}'- the use of the telephone in order to ascertain whether its line is in proper order. While the storm raged during the greater portion of the time intervening be — 538 — tween 11 o’clock a. m. and 4:30 o’clock p. m. on the day of the accident, nevertheless there was a period of one and one-half hours where it substantially subsided. The telephone is a modern convenience, and would have been a great aid in ascertaining breakages in the system and interruptions in transmission. None of the means available were resorted to. At 4 o’clock p. m. a telephone message was received by the defendant from a station known as Powers Lake, a line connected with the Wilmot-Salem line, but nothing was done to shut off the current until after the accident in the instant case had happened. In view of what has been said, we conclude that whether or not on the day of the accident the defendant properly maintained his line or exercised the necessary degree of care to determine whether a bréale in the line had occurred by reason of the storm presented a proper jury issue; and the jury having answered the question of maintenance adversely to the defendant, such answer cannot be set aside. As to question 2, whether the negligence of the defendant was the proximate cause of the injury, little need be said. It being the duty of the defendant under the circumstances to make an inspection and investigation of the condition of his line, and the jury having found the defendant guilty of negligence as to his maintenance of the line, the answer to the question of proximate cause is not only warranted but sustained by the evidence. As to' question 3, which refers to the alleged contributory negligence of the plaintiff, the record shows affirmatively that the plaintiff had little or no knowledge of electricity, and no experience with electric appliances or wires, excepting that as an ordinary laborer or helper he assisted in constructing wires from the main line to the hotel. While it appears from the evidence that the plaintiff had knowledge at the time of the accident that the apple tree had been broken down by the storm, he was not aware of the existence of the broken electric wire; and even assuming — 539 — that he knew of sttch wire, it cannot be said that he was conscious of the danger existing on coming in contact with such wire. The answer of the jury is therefore sustained by the uncontradicted evidence in the case. We therefore conclude that the court erred in ordering judgment for the defendant on motion of his counsel, and that judgment should have been granted in plaintiff’s favor on the special verdict. By the Court. — Judgment reversed, and the cause is remanded with directions to enter judgment in favor of the plaintiff in accordance with this opinion.- A motion for a rehearing was denied, with $25 costs, on February 12, 1924.