Clements v. Louisiana Electric Light Company

Decision Date01 May 1892
Docket Number10,925
Citation44 La.Ann. 692,11 So. 51
CourtLouisiana Supreme Court
PartiesDENNIS CLEMENTS AND WIFE v. LOUISIANA ELECTRIC LIGHT COMPANY

APPEAL from the Civil District Court for the Parish of Orleans. King, J.

J. R Beckwith and J. B. Fisher, for Plaintiffs and Appellees.

Farrar Jonas & Kruttschnitt, for Defendant and Appellant.

OPINION

MCENERY J.

Joseph Clements was killed on the 4th day of October, 1890, by an electric current from the wires of the defendant company while engaged in repairing the gallery roof at the corner of Gravier and Camp streets, in the city of New Orleans.

The plaintiffs, the father and mother of the deceased, sue the defendant company for damages for the death of their son.

There was judgment for the plaintiffs for $ 5000, and the defendant appealed.

Joseph Clements was a tinsmith by occupation. He had been employed to go on the roof of the gallery to repair the same by a contractor.

He was accompanied by another young man, Alfred Anderson.

In half an hour after they went on the roof, Clements was killed by coming in contact with the defendant's wires. Two of defendant's wires run up and down Camp street over the roof of this gallery.

They were two feet four inches above it. They were some seventeen inches distant from each other, and the inside wire was about four feet from the Camp street edge of the gallery.

The wires were fastened to a support or "horse" on the gallery, and the inside wire, to prevent its contact with other wires, was secured to the horse by a piece of telephone wire.

Between the horse and the Gravier street side of the gallery there was, on the inside wire, a joint covered with insulating tape. To all appearances it was in good condition, but had been worn by the exposure to the weather, and had evidently lost some of its insulating properties.

The defects, however, were not visible, but were exhibited during a storm, as shown by the testimony of S.W. Bennett. From his testimony it is shown that the insulating tape had been defective for a considerable time. He occupied a room fronting on the roof, and forbid his employees from going on it on account of the want of proper and safe insulation over the wires.

Clements and his companion were engaged in cleaning the roof, the first in sweeping and the other in carrying off the dirt.

The fatal injury to young Clements was rapid in its results, so quick in execution that no witness, not even the witness who was on the roof with him, was able to state with precision his position when he received the shock from the wire. But we think, from all the attendant circumstances, that he was either stepping over the wire or going under it. It is probable that he came in contact with both wires, making a short circuit, increasing the energy of the electric force. The unprotected or uninsulated places which were not visible on the splice in the wire came in contact with his body under the right shoulder blade.

The wires were so close to the roof that to pass from where Clements was first seen sweeping to the gutter, he must either have stepped over or crawled under.

From the distance of the wire above the roof, to step over would in all probability have brought Clements' body in contact with one or both wires. He was only of medium height, and to step two feet four inches would require not only exertion, but some skill to keep clear of touching the wires.

It is in evidence that about the time the accident occurred there was considerable leakage on defendant's line of wires, and this is urged as evidence of neglect on the part of defendant because it showed defective insulation.

But the general defect along the defendant's line can not be evidence of want of due diligence and care. It must be shown that the accident was occasioned by some defect at the point where the injury was inflicted. Nivette vs. Lake Railroad Company, 42 An. 1153.

We are aware of the difficulty which confronts the defendant company in keeping its many wires passing over a large territory to great distances, in a condition of perfect insulation. Parts of the line will necessarily become uncovered, and all that can be expected is that the company will inspect its lines and repair defects as early as practicable. The particular defect in insulation in this case which is complained of was one of long standing, and by a careful inspection of its lines it would have been brought to its notice.

By city ordinance 806, Council Series, the legal duty of the defendant is specified.

Section 8 of the ordinance provides "that all splices or joints, wherever the same may occur, shall be thoroughly soldered after such joint or splice is made, and in addition thereto shall be well and thoroughly wrapped with kerite tape or other insulating material, so as to produce perfect insulation at such joint or splice." This ordinance was a contract with each and every inhabitant of the city. The defendant's standard of duty was fixed by it, and it is the same under all circumstances, and its omission is neglect.

The first requirement of the plaintiffs was to show the existence of this duty which they alleged had not been performed, and having shown this, they must show a failure to perform the duty, and thus establish negligence on the part of the defendant.

It is an affirmative fact, the presumption being until the contrary appears, that every person will perform the duty enjoined by law or imposed by contract. Cooley Torts 659, 661.

In many cases evidence of the injury done makes out a prima facie case; for instance, where a bailee returns in an injured condition an article which has been loaned to him, or where a passenger on a railway train is injured without fault on his part.

The city ordinance does not specify at what particular localities splices shall be perfectly insulated. On all parts of the line of defendant company where they occur the duty is specified.

The wire of defendant was spliced, and was not insulated as required by the ordinance. It passed over a roof, to which people in adjoining rooms had access, and where in the course of time mechanics must go to make repairs, or laborers to sweep off or clean the roof.

It was the duty of the company, independent of any statutory regulation, to see that their lines were safe for those who by their occupation were brought in close proximity to them.

In this respect and in this particular case we are of the opinion that the defendant's negligence caused the death of Clements.

But notwithstanding this fault of defendant, if the evidence shows that the plaintiff himself was guilty of negligence, contributing to the injury, he can not recover.

The question is whether the act of the party injured had a natural tendency to expose him directly to the danger, which resulted in the injury complained of.

If the plaintiff could, by the exercise of reasonable care at, or just before the happening of the injury to him, have avoided the same he can not recover damages for the injury.

When the action of both parties must have concurred to produce the injury, it devolves upon the plaintiff to show that he was not himself guilty of negligence.

He must show affirmatively that he was in the exercise of due and reasonable care when the injury happened. 40 An. 787; 83 Ill. 354; 19 Conn. 566; 78 N.Y. 480; 101 Mass. 455.

This proof need not be direct, but may be inferred from the circumstances of the case. 104 Mass. 137; 41 An. 964; 2 Thompson Negligence, 1178.

The deceased Clements was lawfully on the gallery roof. He was engaged in a service that necessarily required him to run the risk of coming in contact with defendant's wires, either by stepping over them or going under them. It is...

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