Swan v. Salt Lake & Ogden Railway Co.

PRICK, C. J. Biespondent recovered a joint judgment against the defendant Home Telephone & Electric Company and the Salt Lake & Ogden Kailwky Company, both Utah corporations, for damages for personal injuries which he sustained by reason of the alleged negligence of said corporations. The railway company alone appeals, and will hereafter be called appellant, while the other defendant will be designated as “telephone. company.” The allegations of negligence against appellant in substance are that on and1 for a long time prior to the 22d day of July, 1910 (the day of the accident), appellant had negligently and carelessly placed1 and maintained on certain poles along the east margin of a certain highway in the town of Kaysville, Davis County, Utah, certain wires which continuously carried a dangerous quantity of electricity, to wit, 40,000 volts ; that said wires were placed in close and dangerous proximity to the poles and wires of the telephone company, to wit, “within about one foot thereof;” that the wires of appellant aforesaid were by it negligently and carelessly suspended in such proximity to the poles and wires of the telephone company that appellant’s wires charged with said1 quantity of electricity were “extremely dangerous to the [522] safety and lives of tbe employees of tbe defendant Home Telephone Company in climbing and working on its poles.” It is further alleged that respondent was an employee of tbe latter company, and that appellant bad full knowledge of tbe dangerous condition of tbe wires aforesaid, and1 that, notwithstanding its knowledge of said dangerous condition, it negligently and carelessly permitted tbe same to exist. Tbe evidence produced on behalf of tbe respondent is, in substance, as follows:' In January, 1909, tbe telephone company constructed a line of telephone poles along tbe east margin of a public street oí highway in Kaysville, an incorporated town in Davis County, Utah. Tbe poles in question were twenty-five feet in length and were placed four feet in tbe ground. A cross-arm was attached to each pole about four feet from tbe top and a mortise or gain was cut into each pole higher up and within about seven or eight inches from the top in which an additional crossarm could be fastened. Upon the lower crossarm telephone wires were strung soon after the poles were erected, and on the upper arm on the west side of the poles two larger wires for the purpose of transmitting electricity for light and1 power purposes had been strung some time between January and May, 1910. A third wire to be used for the same purpose was being strung on the upper crossarm at the time of the accident, July 22, 1910. In January, 1910, a year after the telephone poles had been erected, the appellant also erected poles upon which it intended to, and did, string high-tension wires for the purpose of transmitting electricity to be used in propelling its cars on its line of railway between Salt Lake City and Og-d'en, which up to that timie had been transported with locomotive engines operated by steam power. Appellant’s poles were forty feet long, and were set six feet into the ground. To the latter poles were attached two crossarms one near the top and the other some six or seven feet lower down.. On the lower orossarm there were two wires and one on the upper carrying 40,000’ volts of electricity to be used for the purpose aforesaid. The poles of appellant were thus from [523] twelve to fifteen feet bigber above tbe ground than those of the telephone company and tbe crossarms and wires on both lines of poles were ialso approximately that distance apart. The line of poles of the telephone company at the point of the accident and1 northerly thereof ran in a northwesterly direction, while the appellant’s pole line ran more nearly in a northerly direction, so that the two lines appeared in the form of an acute angle like the letter V as they approached each other from the north, while in going south the lines again diverged, the appellant’s line veering to the east of the telephone company’s line which continues on in a southerly course. The two lines run in close proximity only for a short distance, and there was but a single pole on which the wires approached so close as might make them dangerous to anyone ascending the pole. At the point of the accident the poles of both companies practically constituted one line with the poles of the two companies alternating for a short distance. At this point appellant had placed a pole which was considerably shorter than its other poles while the telephone company’s pole nearest to said short one was placed upon somewhat higher ground, so that one of the high-tension wires on the lower crossarm of appellant’s line of poles was brought down, as the witnesses say, to from seven to eleven inches from the top of one of the telephone poles, or from sixteen to eighteen inches from the upper crossarm attached to the telephone pole. This condition had existed for at least sixty days prior to the accident, during all of which time appellant’s wires were charged with the voltage aforesaid, and appellant during all of that time continuously operated its cars on its line of railroad in open view of the poles and wires placed as aforesaid. Some time before the accident, an employee of the telephone company who was in charge of its line directed the attention of the superintendent of the construction company that was constructing apppellant’s high-tension line to the proximity of appellant’s wires to those of the telephone company at the point aforesaid. The same employee thereafter, and before the accident, also wrote a letter to said1 superintendent, ad [524] dressed in care of appellant at its offices in Salt Lake City. Tie respondent for about two months before the accident bad been in the employ of tbe telephone company as an “apprentice lineman/’ and during that time was engaged in “trimming trees and stringing wires” north of the place of the accident. On the morning of the accident respondent, with three others, was engaged in stringing a third power and light wire on the topi crossarm of the telephone line. As before stated, the telephone poles were placed in a public highway or street in Kaysville along the easterly margin of said street, and the wire was being reeled off along the west side of the poles in the street. One of the m,en would thus pick up the wire and'while holding it in his hand would, by means of climbers attached to his feet, ascend the telephone pole and carry the wire around the westerly edge of both the lower and upper crossarms, and place the wire loose upon the upper crossarm to be fastened thereto later. The three men were thus climbing the poles alternately, and in doing so each one climbed every third pole as they approached the point of the accident. The respondent had never before been on the poles at or near the point of the accident, but in stringing wires on the morning in question noticed that the poles of appellant’s line were running ialong easterly of the telephone line, and that they were considerably higher, and that the wires thereon which he supposed were carrying a high voltage were also ten to fifteen feet above the wires of the telephone company upon which he was working. In taking the wire up the poles as aforesaid, respondent did not notice that he was ascending a pole which was standing near one shorter or lower than appellant’s other poles. He ascended the pole in question on the east side so as to avoid the morning sun from affecting his eyes: In going up the pole, his attention, as he says, was directed to his feet or climbers to avoid placing them into the season cracks in the pole, which, if done, might cause him to lose his footing and fall to the ground as he had seen others do in placing a climber point into one of the season cracks. As respondent ascended the pole, appel [525] lant’s high-tension wire was back of or over bim. When be bad reached tbe lower crossarm of tbe telephone pole, bo carried tbe wire around tbe west end thereof, then ascended higher, and stood' upon tbe crossarm with bis body leaning forward and to the' west, and in that position took tbe wire which be held in his band around tbe west end of tbe upper crossarm, and, after having done so, be straightened up to carry tbe wire over tbe top of tbe telephone pole, and in doing so, and without having bis body come in actual contact with appellant’s wire which was charged with 40,000 volts a flash of light or flame of fire was by one of bis associates seen to pass from said wire to tbe back of respondent’s body about tbe shoulders, and tbe force of tbe shock caused bim to be pitched forward and thrown from tbe pole into tbe street, iand by reason of tbe fall and shock be received serious and permanent injuries. It is also made to appear that a wire charged with 40,000 volts of electricity is exceeding dangerous to life, and that contact with' or so near an approach to tbe wire as practically amounts to a contact usually means certain death. It was also shown that there was absolutely no necessity or cause for placing a lower pole at tbe point where tbe telephone and high-tension lines met or for placing or leaving tbe bigb-tension wires in such close proximity to tbe telephone pole in question and tbe wires thereon. It was also made to appear that there were ■ two ways in which appellant could bare avoided tbe dangerous condition of its bigb-tension wires. One was by insulating tbe wire for a few feet on either side of tbe telephone pole, and tbe other by putting in a pole of tbe same length as its other poles, and in that way elevate its wire, and thus place it at a safe distance from tbe telephone pole. Upon practically tbe foregoing state of facts, tbe appellant moved for a nonsuit in tbe lower court, upon two grounds: (1) That no actionable negligence on tbe part of appellant, bad been shown; and (2) because it was made to appear that tbe respondent was guilty of contributory negligence as a matter of law. [526] 1 Many reasons are assigned wby tbe evidence is insufficient to justify a finding of negligence against tbe appellant. It is, in effect, contended tbat all tbat tbe respondent bas to rely upon to establish bis case is tbe doctrine of res ipsa loquitur; tbat is, tbat something unusual happened which caused an injury to him. This doctrine, it is strenuously insisted, is not applicable to a case like tbe one at bar, and hence cannot be invoked by respondent. A sufficient answer to appellant’s contention in this behalf is tbat neither in tbe trial court nor in this court bas respondent either invoked or relied upon tbe maxim. No further comment is therefore necessary. 2 Tbe evidence in this case showing appellant’s acts and1 conduct in our judgment is, however, clearly such as to admit of conflicting inferences with respect to whether such acts and conduct, under all the circumstances, constituted negligence or not; and hence it was proper to submit tbe whole evidence to tbe jury to pass on. The jury in passing on the question of appellant’s negligence had a right to consider (1) the nature and character of the electric fluid carried by the wires and the effect thereof on human life when coming in contact with or very near to them; (2) tbe proximity tbat tbe poles and high-tension wires were placed to those of tbe telephone line; (3) tbe fact tbat there was no necessity whatever for placing such a dangerous agency in such dose proximity to tbe telephone pole; (4) that it was a; very easy matter to remove tbe dangerous wires by simply replacing tbe short pole with one of tbe same length as appellant’s other poles, or by insulating tbe high-tension wires for a short distance each way from tbe telephone pole; and (5) tbe length of time tbat appellant permitted its high-tension wires to remain in the condition they were at the point where the short pole was placed after it was charged with knowledge of their condition and proximity to the telephone pole'. The Supreme Court of California in Giraudi v. Electric Imp. Co., 107 Cal. at page 124, 40 Pac. at page 109, 28 L. R. A. 596, 48 Am. St. Rep. 114, in passing upon the question of negligence in a somewhat similar case, says: [527] “Defendant was using a dangerous force, and one not generally understood. It was required to use very great care to prevent injury to person or property. It would have been comparatively inexpensive to raise the wires so high above the roof that those having occasion to go there would not come in contact with them. Not to do so was sufficient proof of negligence to justify the verdict.” In Choctaw, Oklahoma, etc., R. R. Co. v. McDade, 191 U. S. at page 67, 24 Sup. Ct. at page 25, 48 L. Ed. 96, the Supreme Court of the United States, in referring to the fact that, where an easy remedy is practicable to avoid a dangerous agency, such fact may be considered in determining negligence, adopts the following language of the Circuit Court of Appeals, namely: “It is so simple a task, one so devoid of all exigencies of expense, necessity, or convenience, so free of any consideration of skill, except that of the foot rule, and so entirely destitute of any element of choice or selection that not to make such a construction safe for the brakeman on the trains is a conviction of negligence.” In the case at bar it did not even require the foot rule. All that was necessary was to displace -the short pole with one of the regular length, which everyone knows could have been done almost as easily and as quickly as to put in place one of the poles in the first instance. If it be said that neither one nor all of the foregoing acts and omissions constituted negligence as a matter of law, yet it must also be said that those acts and omissions cannot as matter of law be declared free from negligence. The question of negligence was therefore to be determined by the jury. To this effect are all of the authorities, among which we refer to the following: Dow v. Sunset, etc., Co., 157 Cal. 182, 106 Pac. 587, and Id. (Cal.), 121 Pac. 379; Herbert v. Lake Charles I. L. & W. Co., 111 La. 522, 35 South. 731, 64 L. R. A. 101, 100 Am. St. Pep. 505; Atl. Con. St. Ry. Co. v. Owings, 97 Ga. 663, 25 S. E. 377, 33 L. R. A. 798; Gentzkow v, Portland Ry. Co., 54 Ore. 114, 102 Pac. 616, 135 Am. St. Rep. 821; Overall v. Louisville El. L. Co. (Ky.), 47 S. W. 443; Brown [528] v. Edison El. I. Co., 90 Md. 400, 45 Atl. 182, 46 L. R. A. 745, 78 Am. St. Rep. 442; Olson v. Nebraska Tel. Co., 85 Neb. 331, 123 N. W. 423, 133 Am. St. Rep. 660; and Id., 87 Neb. 593, 127 N. W. 917; Drown v. New England T. & T. Co., 80 Vt. 1, 66 Atl. 801; Biddle v. Leavemworth L. H. & P. Co., 87 Kan. 604, 125 Pac. 51. Tbe last case cited was decided since tbe case at bar was submitted, and, in view of tbe facts in that case, tbe decision upon tbe question of negligence and1 contributory negligence is decisive of tbe same questions involved bere. Nor is appellant’s intention tenable, that it was not required to anticipate and guard against anyone going to tbe top of tbe telephone pole, because, wben its bigb-tension line was constructed, there was only tbe lower crossarm on tbe telephone poles. Tbe answer to this is that there was a mortise or gain cut into tbe upper end of tbe telephone pole at that time which was intended for an additional crossarm. This was in and of itself notice that another crossarm might and probably would be attached to tbe telephone pole at some future time. Tbe matter was, however, not left to mere probability or conjecture since tbe upper crossarm with two additional wires were in fact placed on tbe telephone poles, including tbe one in question, at least several months prior to tbe accident. During all of that time appellant operated its trains daily past and in plain view of tbe telephone poles, including tbe one upon which respondent was injured, and it appears from tbe evidence that tbe employees on tbe trains actually observed tbe conditions of tbe poles and wires. Appellant was thus apprised of tbe fact, not only that some one must have ascended tbe telephone pole in question since it was erected, but also that in all probability it would be necessary for some one for some purpose to ascend tbe pole again, and that ibis might occur frequently and at any time. It was thus made apparent to appellant as well as to others that those bigb-tension wires, charged as they were with a most deadly and destructive agency, not only might, but in all probability would, epdanger tbe life of any one who might be required to ascend the telephone pole. For these reasons [529] ■•and others, appellant was required to foresee that its wires, charged as thy were, might cause injury to some one, and, to say the least, the question was for the jury to say whether it should have guarded1 against such an emergency or not. The question of contributory negligence does not require lengthy discussion. Keeping in mind the fact that respondent had never been on the telephone pole before, that he was approaching it from the north, and that all appellant’s poles •of its high-tension line to the north were from twelve to fifteen feet longer than the telephone poles, that respondent did not know of the short pole nor of the proximity of appellant’s high-tension wires to the wires on the upper cross-arm of the telephone pole, or to the top' of that pole, and, ■finally, that in ascending the telephone pole his attention was directed to getting a sure footing and thus did not notice the proximity of the wires above him — all these things and perhaps others were matters from which the jury were justified in arriving at the conclusion that respondent was not guilty ■of contributory negligence. 3,4 In addition to the assignments just passed on there are also about eighty others. Counsel have divided those into groups, but even in that form we cannot, without extending this opinion to an unnecessary length, consider them at length. It is argued that respondent did not show that the telephone company had a right to place any wires on the upper crossarm of its poles, and hence he failed to show that he was where he had a right to be. Indeed, counsel introduced an ordinance of the Town of Kaysville, in which it was provided that the telephone company might string telephone wires only on its poles. Sufficient an■swer to counsel’s contention, however, is that it raised no such issue in the pleadings. Assuming, however, that there was such an issue, we think it does not lie in appellant’s mouth to say who is and who is not .a> trespasser on poles erected in a public highway. Respondent at no time trespassed on appellant’s property, and, although it were ■conceded that the telephone company was exceeding its rights [530] in stringing wares on its poles at tbe time of the accident, yet that was a matter to be settled between the Town of Kays-ville and that company. Appellant cannot excuse its acts either of commission or omission by pointing to the fact that the telephone company was transcending its rights or powers in stringing wires on the telephone poles. Besides, there is not a particle of evidten.ee that appellant knew or was induced to act or remain inactive because of the alleged lack of authority of the telephone company. If therefore it had no effect upon the acts or conduct of the appellant it is immaterial what the telephone company’s rights were. It must at least be conceded that the respondent was where he had a right to be so far as 'appellant is concerned. We think, therefore, that, under all the circumstances, appellant could not with immunity create a dangerous condition so near the telephone poles of the telephone company as to endanger the lives of its employees whatever the latter company’s rights in the street may have been. The telephone company was given the right by the Town of Kaysville to place and maintain its telephone poles in the street, and, if it strung-one or more wires thereon without authority, it was a matter of which a stranger had no right to complain, or behind which he can shield himself from the consequences of his unlawful acts or conduct. The following authorities dispose of the question under consideration against appellant’s contention: Ladow v. Oklahoma Gas & El. Co.. 28 Okl. 15, 119 Pac. 250; Olson v. Nebraska Tel. Co., supra; Mahan v. N. & B. St. Ry., 189 Mass. 1, 75 N. E. 59, 60; Commercial El. L. & P. Co. v. City of Tacoma, 17 Wash. 661, 50 Pac. 592. [530] It. is also insisted that the court erred in admitting in evidence a certain conversation between the manager of the telephone company and one Kline, who was the superintendent of the construction company that built appellant’s high-tension line. It is alleged that Kline was not an employee of appellant, and hence it was error to admit a conversation which related to the dangerous proximity of appellant’s high-tension wires to the wires on the telephone poles; fur [531] ther, that the court erred in admitting a letter written by tbe manager aforesaid to said Kline which related' to the same subject. The conversation occurred and the letter was written sixty days or more before the -accident. It ■appears from the record that the court strictly limited, both what was said in the conversation and in the letter to the question of notice. That is, that the jury could consider the evidence in question but for one purpose, namely, that appellant was apprised of the proximity of its high-tension wire to those of the telephone company. Assuming, without deciding, that appellant’s objections to the admission of the evidence were sufficient to raise the question, and further, that the court erred in admitting the evidence objected to so limited as aforesaid, yet appellant would not thereby have been injured in a substantial right for two reasons: First, Because appellant had for months before the accident operated its daily trains past the point in question, and in plain view of its short pole and the condition of its high-tension wires thereon. In view of this, appellant, under all the authorities, was charged with knowledge of the ■condition of its poles and wires as a matter of law. If this be so, then appellant could not have been injured by merely offering proof against it as a, fact that which it was bound to know as a matter of law, and this would be so, although 'the evidence by which the knowledge was shown was improperly admitted. Second. Because both the conversation and the letter related to a matter that was not in dispute. At the trial no one questioned the fact that the poles and wires of the telephone company and those of appellant were in fact in close proximity and that appellant caused them to be so, and that is really all that was referred to by the manager of the telephone company in communicating with Mr. Kline. 6 ■ It is next insisted that “the court erred in refusing to admit testimony offered by appellant as to the duty and the practice of linem'en in taking precautions for their ■safety.” We have carefully examined the proffered testimony on this point. Without now passing upon [532] the question of admitting testimony directed to tbe practice' of and' care exercised by experienced linemen in working on poles where lire high-tension wires are in close proximity to said linemen, we are of the opinion that the court committed no error in sustaining the objections to all of appellant’s questions asked upon the point in question for the following reasons: All of the questions objected to either assumed1 that respondent actually knew the condition of the wires and their proximity to the telephone poles and wires, or that he was bound to know these things as a matter of law, before and at the time he ascended the pole in question. Counsel, therefore, assumed in their questions the very fact that was for the jury to determine, namely, whether respondent knew or under all the circumstances should have known or should be charged with knowledge of the danger he was about to incur in ascending the pole in question. The law does not require anyone to take particular precautions against a danger the existence of which he is not required as a matter of law to know, and does not know. If respondent did not know of the dangerous condition of the wires, and he positively testified that he did mot, and if he was not charged with knowledge thereof as a matter of law, then, as to him, the dangerous condition did not exist, and hence his conduct could not be compared with the conduct of those who are aware of a dangerous condition, and who come in proximity therewith with full knowledge thereof. The test, therefore, that counsel sought to apply to respondent, was under the circumstances of this case, not a proper nor a fair one; and the court, for the reasons given, committed no error in excluding the proffered testimony. 7 It is further argued that “the court erred in refusing to permit witnesses to testify .as to whether the construction complained of by plaintiff (respondent) was, as a matter of fact, dangerous.” We are clearly of the opinion that, in view of the facts and circumstances of this case, the court did not err in refusing the proffered testimony. All the facts were before the jury, and it was for them to say whether the construction w:as safe or dangerous. We [533] can. conceive of no reason why it required expert testimony to determine whether a wire charged with 40,000 volts of electricity, which is by all conceded to be a most dangerous agency when coming in contact with or in very close proximity to a living being, is, under a certain state of facts, dangerous or not. There was nothing occult nor mysterious about the construction, nor was there anything which required special shill or knowledge to determine the ultimate question whether the construction in question was dangerous or-otherwise when once the facts were produced in evidence. The court permitted the appellant to fully develop its theory of the accident and the cause thereof. It was permitted to develop every fact from which the jury might arrive at a just conclusion with respect to its own conduct, and also that of respondent. The proffered evidence was of that character ■which, if permitted, would have substituted the conclusions of witnesses for that of the jury. This would have been improper, and no amount of argument cam make it otherwise. 8, 9 It is also contended that the court erred in refusing appellant’s request to charge the jury that it was under no duty to furnish respondent a reasonably safe place to work. No doubt such is the law, but the court told the jury in explicit terms just what facts had to be proven in order to hold appellant responsible for respondent’s injuries. This was sufficient. Besides, the case was not tried upon such a theory; and hence it was not necessary to inform the jury upon questions of law not applicable to the case. 1 O' It is also insisted that the court erred in charging the jury that any act of appellant “lawful or otherwise and whether negligent or otherwise which endangered” the respondent rendered appellant liable for his injuries. We have-carefully examined the court’s charge, and we can find nothing in it from which liability on the part of appellant might be inferred, .as contended by counsel, although its acts and conduct did not amount to negligence as that term is defined in the charge. Upon the contrary, we-are convinced that, taking the charge as a whole, the case was fully and fairly submitted to the jury. The jury were534 admonished over and over again that, -unless appellant’s negligence as defined in the charge was shown by a perponderance of the evidence, their verdict must be in its favor. There are other assignments relating to the refusal of the court to charge as requested'. The matters covered by the requests, when proper, were, however, sufficiently covered by the court’s general charge. A few other questions are argued! with respect to the 'admission or exclusion of certain evidence and the legal affect thereof, but all of those we have already sufficiently covered by what has been said. A careful scrutiny of the entire record constrains us to hold that the ease was fully and fairly tried and submitted, and that there is nothing disclosed which would1 authorize us to interfere with the verdict of the jury or the rulings of the court. The judgment is therefore affirmed, with costs to respondent. McCARTY, J., concurs.