Thomas v. Wheeling Elec. Co

• Citation: 54 W.Va. 395,46 S.E. 217
• Parties: THOMAS . v. WHEELING ELECTRICAL CO.
• Decision Date: 12 December 1903
• Court: Supreme Court of West Virginia

46 S.E. 217
54 W.Va. 395

THOMAS .
v.
WHEELING ELECTRICAL CO.

Supreme Court of Appeals of West Virginia.

Dec. 12, 1903.

PLEADING—SURPLUSAGE—NEGLIGENCE—QUESTION FOR JURY—ELECTRIC LIGHT COMPANIES —DEFECTIVE INSULATION — CONTRIBUTORY NEGLIGENCE—WRONGFUL DEATH—DAMAGES.

1. It is only necessary to state facts, and never is it necessary to aver matter of law, in a declaration. Hogg's Plead. & Forms, 59.

2. Surplusage in pleading does not vitiate. Hogg's Plead. & Forms, 59.

3. Where there is no controversy as to the facts or inferences that may be fairly drawn from them, the question of negligence is one of law for the court. Where such is not the case, the question is for the jury.

4. It is the duty of electric companies to use very great care to keep the insulation of its dangerous wires perfect at places where people have a right to go for work, for business, or for pleasure.

5. When injury to a person comes from contact with a live electric wire from bad insulation at a place where there ought to be good, safe insulation for safety to persons, it is a case of negligence on the part of the electrical corporation, rendering it prima facie liable.

6. If one take hold of an electric wire at a place where it ought to be safely insulated for safety to persons, and is injured by reason of defective insulation, he not knowing its defect, he is not, from so doing, guilty of contributory negligence forbidding recovery of damages.

7. One coming in contact with a live electric wire in discharge of duty will not, on account of so coming in contact, be guilty of contributory negligence, if it was the duty of the corporation to properly insulate the wire at the place of injury, and it has neglected to do so, and the person knows not the defect of insulation.

¶ 7. See Electricity, vol. 18, Cent. Dig. §§ 10, 11.

8. In places where electric wires should be insulated for safety to persons, one may assume that they are so insulated, if he knew not to the contrary.

9. A corporation or person operating a plant for electric lighting must anticipate injury as likely to happen to persons from contact with its wires by reason of defective insulation at places where the law requires such insulation.

10. The verdict of a jury in an action for death from wrongful act cannot be set aside for excessiveness in an amount under $10,000, their assessment being final, unless the verdict be the result of passion, prejudice, partiality, or corruption on the part of the jury.

11. The refusal of a court to permit a witness to answer a question will not be considered in the appellate court when it is not stated or shown what it was expected the answer would be, unless the question very clearly imports what such answer must be.

(Syllabus by the Court.)

Error to Circuit Court, Ohio County; H. C. Hervey, Judge.

Action by W. F. Thomas, administrator, against the Wheeling Electrical Company. Judgment for plaintiff. Defendant brings error. Affirmed.

Caldwell & Caldwell and J. A. Howard, for plaintiff in error.

J. J. Coniff, for defendant in error.

BRANNON, J. On the front of the Grand Opera House, on the corner of Market and Twelfth streets, in the city of Wheeling, is a balcony 8 feet long, 3 feet wide, 30 inches high, with a rail 8 inches wide. Out from the building at the street curb stood a pole, and from it two wires conveying electricity for light, belonging to the Wheeling Electrical Company, extended by a sharp angle to a bracket on the north wall of the opera house. These wires passed close to the rail of the balcony, 18 or 20 inches from it, one 6 inches above the other. The balcony is used for people to go out upon through a window of the opera house opening upon it. There had been a converter or transformer on this balcony from which two wires ran to the main wires just mentioned; but the transformer was removed, and the two wires connecting it with the wires outside the balcony were cut away at the point of their union with the two wires outside the balcony, and in doing so the defendant left the ends of the wires stick out, and did not properly wrap them, and did not cover them with tape, and the old insulating material did not cover the point, and was worn and dangerous. It was clearly shown that the wires in this condition were extremely dangerous; this was not a disputed fact, the officers of the company stating on the stand that they were so dangerous that contact with them would kill. They remained in such condition a long time, without inspection. An opera company which had leased the building for a term had been performing in it, and had tacked advertising banners on the balcony, and, when about to close its performance there, employed Earl J. Thomas, 21 years of age, 5 feet 11 inches high, to gather these banners on Market street, and he went out upon this balcony to untack from the balcony some banners which had been tacked upon it, one of them on the north end of the balcony by which the wires ran, the banner being tacked on the top rail and on the lower part of the balcony. While engaged in this work, between 7 and 8 o'clock of the night of 2d November, he came in contact with one of the electric wires. He was seen grasping the wire with his left hand, his right hand on the left wrist, leaning against the corner of the brick wall at the junction of balcony and wall, apparently fastened or transfixed by the shock, and when jerked away by a person who went to his rescue fell lifeless to the balcony floor. He was apparently dead while standing against the wall with the wire in his hand. Whether he took hold of the wire to steady himself when intending to reach down to loose the lower corner of the banner, or how or why he took hold of it, does not appear. He was simply seen grasping it, fastened to it. The upper corner of the banner had been loosed by him. His administrator brought an action against the company to recover damages for his death, and by the verdict of a jury recovered

[46 S.E. 218]

$7,500, on which judgment was rendered. The company brings the case here, assigning 43 errors.

Complaint is made that the second count states the duty resting on the defendant as too high and stringent. That is mere allegation of law, and immaterial. Pleadings should state facts, not law. Facts only are necessary to be stated, not arguments and inferences. Where a declaration, after stating facts, alleges that it thereupon became the duty, etc., the allegation is to be understood as a mere legal liability supposed to result from the facts, and as an assertion that the defendant became bound in law to a legal liability, and not as a substantive allegation. The allegation of duty is superfluous where the facts show a legal liability, and is useless where they do not. 1 Chitty, Plead. 236; 2 Chitty, Plead. 476. It is not claimed that the facts stated in this count do not raise a duty. The matter complained of is surplusage. It would not vary or prescribe the proof. "It is only necessary to state facts, and never Is it necessary to aver matters of law in a declaration." "Surplusage never vitiates a declaration, and is treated as if It had never been inserted therein." Hogg's Plead. & Forms, 59; Andrews' Stephen's Plead. 411.

The defendant complains of the following instruction given for the plaintiff: "The court instructs the jury that it was the duty of the defendant to not only protect any portion or portions of its wires in close proximity to the north end of the balcony, mentioned in evidence, that may be exposed, by proper insulation, so that persons coming in contact therewith in the performance of their work would not be injured, but it was also the duty of the defendant, by proper inspection from time to time, to see that said insulation was kept in a proper condition." It is said that this instruction takes...