Cook v. Wilmington City Electric Co.

• Decision Date: 01 February 1892
• Citation: 14 Del. 306,32 A. 643
• Court: Delaware Superior Court
• Parties: JOHN E. COOK v. WILMINGTON CITY ELECTRIC CO

32 A. 643

14 Del. 306

JOHN E. COOK v. WILMINGTON CITY ELECTRIC CO

Superior Court of Delaware, New Castle

February 1, 1892

ACTION for personal injuries resulting to the plaintiff from coming in contact with a live electric wire of the defendant company. (Facts fully appear in charge of the Court.)

Verdict for the plaintiff.

Levi C Bird and Andrew Sanborn, for plaintiff.

J. H Hoffecker, for defendant.

Heard before HOUSTON and CULLEN, J. J.

OPINION

CULLEN, J., charging the jury:

Gentlemen of the Jury: It becomes necessary for the Court to charge you in the case in which you have been empaneled, the suit of John E. Cook against the Wilmington City Electric Company. This, gentlemen, is a very interesting case, not that there are any new legal principles involved, because the principles which have already been decided in cases throughout the country and, I may say, in this State also, fully settle all the legal matters which are involved in this case; but every case, after all, must necessarily depend upon some peculiar fact or other upon which that immediate case is based. I am not aware of (nor has there been produced here) any case in which are involved the immediate matters which are involved in the trial of this case. This is a suit which has been brought involving a certain state of facts; in other words, it involves a great principle, in which the public are very deeply interested, and that is the liability of persons engaged in a dangerous, business, a business, too, which affects immediately, and very seriously also, the life, limb and property of the public. Hence it is, that, although as I say there are no new principles of law involved, it becomes necessary for the court to explain to you what they think is the law. And I exceedingly regret that our honored and learned chief justice is not here to announce the principles of law which are involved in this case, rather than myself; but, notwithstanding, as it becomes my duty, I shall endeavor to announce to you here as clearly as I can what I consider are the principles involved with reference to the immediate facts growing out of this case, so that you may be able to render a verdict which will be a matter of protection, that the public may understand, and that the company carrying on a business attended with so much danger shall know what duties they owe to the public.

This, gentlemen, is an action brought by the plaintiff, John E. Cook, against the Wilmington City Electric Company, a corporation existing under the laws of this State, in whom was vested the right to generate electricity for the purpose, etc., of lighting the streets, residences and other places of business in the City of Wilmington. The plaintiff contends, that on the morning of the 24th of October, 1890, at about 6 o'clock, when returning from his night work, on a dark and drizzling morning following a storm which had prevailed during the night, when passing along Banning street near his home, and in the walk used by the public, he struck a live electric wire which had parted from the pole supporting the same, and was thereby greatly injured, not only for the time being, but that it also inflicted on him injuries of a permanent character which disabled him, to a great extent, from earning a livelihood; that to the negligence of the defendants, was solely to be attributed his injuries, for which he sues for damages.

The only and sole question involved in this case is that of negligence on the part of defendants, provided the evidence offered by them does not show contributory negligence on the part of the plaintiff. In other words a negligence on his part such as contributed to cause the accident (supposing there was originally negligence on the other part) that by ordinary care he might have avoided. This company was vested with the power to erect poles and over them place wires in and along the streets and thoroughfares of this city, through which passed the currents of electricity. The agencies employed in this business were of such a nature and character as to be dangerous to human life, and in such cases the law requires that usual and ordinary care should be used, which in such a business as they operated, requiring and demanded a degree of care and diligence proportionate to the danger or mischief that was liable to ensue; the words usual and ordinary care, mean in such cases nothing more or less, than if there be great danger and hazard in the business, there should be a corresponding degree of skill and attention required by the law. This is not a case of master and servant, though the principle of law involved in such cases are in many respects applicable; there the servant voluntarily assumes and takes the risks and dangers of the business, but in this case, the defendants, as a corporation are engaged in a business attendant with great danger to the lives of citizens, who have a prior right to pass through and along the streets of the city; the privilege of the community, using ordinary care to pass and repass the streets at all hours of the day and night when business requires, cannot be questioned or denied; and they have a right to expect, and it is...