Bristol Gas & Electric Co. v. Deckard

• Decision Date: 11 January 1926
• Docket Number: No. 4434.,4434.
• Citation: 10 F.2d 66
• Parties: BRISTOL GAS & ELECTRIC CO. v. DECKARD.
• Court: U.S. Court of Appeals — Sixth Circuit

10 F.2d 66 (1926)

BRISTOL GAS & ELECTRIC CO. v. DECKARD.

No. 4434.

Circuit Court of Appeals, Sixth Circuit.

January 11, 1926.

Fred H. Parvin, of Greeneville, Tenn., and C. J. St. John, of Bristol, Tenn. (Caldwell & Caldwell and St. John & Gore, all of Bristol, Tenn., and Susong, Susong & Parvin, of Greeneville, Tenn., on the brief), for plaintiff in error.

Robert Burrow, of Bristol, Tenn. (J. D. Baumgardner and Burrow & Burrow, all of Bristol, Tenn., on the brief), for defendant in error.

Before DONAHUE, MOORMAN, and KNAPPEN, Circuit Judges.

KNAPPEN, Circuit Judge.

Defendant in error (plaintiff below) recovered judgment against plaintiff in error (hereinafter called defendant) for alleged negligent injuries causing the death of plaintiff's decedent. This writ is to review that judgment.

Decedent was in the employ of a brick manufacturer whom, for convenience, we shall call the brick company. Defendant was engaged in manufacturing electricity and supplying it to the public, including the furnishing of power to the brick company, for operating its brickmaking machinery. During at least the early part of the night in which decedent met his death there was a severe electrical storm. Early in the morning decedent was found dead under conditions suggesting that he had been killed by an electric current while attempting to start the machinery by placing his hand on the handle attached to the starter box.

Plaintiff contends that the fatal current was due to a defective condition of the wiring or to its connection with the starter box. At the conclusion of the testimony defendant asked directed verdict in its favor, upon the ground that the evidence showed that all the machinery, and the line over which the operating current was transmitted thereto from a point outside the brick plant, was owned and controlled by the brick company; that there was no evidence that defendant was under any duty to inspect or keep the brick company's machinery in repair, or of any negligence on defendant's part, or anything to show whether decedent's death resulted from electric current supplied by defendant, rather than by lightning; also that decedent's death was contributed to by his own negligence and violation of instructions (by reason of the storm) not to go to the place where he was killed.

1. We think the refusal to direct verdict for defendant was not error. It is true that the undisputed evidence showed the brick company's ownership and control of the electrically operated machinery and of the line transmitting current thereto; and that by the general rule, supported by the weight of authority, defendant, which supplied the electricity, and had supplied and installed the apparatus and wiring (and although the brick company maintained no expert electrical force, but was in the habit of specially employing defendant to make repairs to its wiring and apparatus, when expert attention thereto was needed), was not, merely because of such facts, charged with the duty of maintaining and inspecting the apparatus and wiring, nor responsible to the brick company or its employés for injuries, in the absence of evidence of excessive voltage, or other negligence on defendant's part, in connection with the furnishing of the current. Minneapolis, etc., Elec. Co. v. Cronon (C. C. A. 8) 166 F. 651, 654, 657, 92 C. C. A. 345, 20 L. R. A. (N. S.) 816, where a number of authorities are cited and discussed; Memphis, etc., El. Co. v. Speers, 113 Tenn. 83, 81 S. W. 595; Hill v. Pacific G. & E. Co., 22 Cal. App. 788, 136 P. 492; Peters v. Lynchburg L. & T. Co., 108 Va. 333,¹ 61 S. E. 745, 22 L. R. A. (N. S.) 1188.

On the other hand, knowledge by defendant of the alleged defective condition of such wiring and appliances, and its continued furnishing of electric current after and with such knowledge, would make it liable for the death of decedent caused thereby. Hawkins v. Vermont Hydro El. Co. (Vt.) 126 A. 517, 37 A. L. R. 1359, and cases cited at page 1366; Pressley v. Bloomington R. Co., 271 Ill. 622, 630, 631, 111 N. E. 511; Drury v. E. St. Louis L., etc., Co., 194 Ill. App. 121, 129; Hoffman v. Leavenworth, etc., Co., 91 Kan. 458, 461, 138 P. 632, 50 L. R. A. (N. S.) 574; Aurentz v. Nierman, 76 Ind. App. 669, 674, 675, 131 N. E. 832; Toney v. Power Co., 180 Iowa, 1362. 163 N. W. 394. Under such circumstances defendant's duty to exercise due care to protect the employés of the brick company would be the same as that required to safeguard the traveling public from overhanging wires. Denver Consol. El. Co. v. Walters, 39 Colo. 301,² 89 P. 815.

The next important question thus is: Was there substantial testimony tending to show that defendant knew of the defective condition of the wiring as being such as it might reasonably have apprehended was liable to cause injury or death to the brick company's employés through the continued flow of the current into the plant.³ There was testimony that about a year before decedent was killed a transformer on the starter box was burned out. Defendant's electrician found that this was caused by a leaky roof just over the wiring that ran down from the motor. He put in only the new wires needed to make the connection. It does not appear that he did anything about the leaky roof. A witness who testified that he worked at the plant for a short time about eight months before the fatal accident (and thus several months after the transformer had been burned out) said that water would seep in off the hill; that the motor "would get dangerous, and you could not handle it"; and that he noticed electricity escaping four or five times. He says that sometimes it would knock one down when trying to shut it off, and that on some days it was necessary to stop the motor 12 or 15 times in a day's run to "cut the heat off"; that defendant sent a man out to fix the motor following a shock to an employé caused by the electrified rails of the dump line. Presumably defendant would thus be advised of the shock. Another witness, an employé of the brick company for several years before as well as at the time of decedent's death, says that he knew nothing about electricity escaping, but that during rainy spells one would be shocked on the tracks, apparently meaning the steel rails which ran into the brickyard. The record does not show that defendant took any steps to have the leaky roof remedied, or even to advise the brick company of the condition. There was testimony that on the morning after the accident the roof was leaking; that it was wet around the motor box. It also appeared that at this time the lead sheathing of the conduit which inclosed the wires connecting with the starter box was found broken in several places, and there was water in the conduit. The purpose of the sheathing was apparently to protect the wires against damage. We think it was open to the jury to find that defendant had knowledge of conditions making unsafe the use of the wires and appliances in and about the starter box, and that defendant should reasonably have apprehended that one attempting to take hold of the handle to start the machinery was likely to receive a dangerous electric shock, and that, in continuing, with this knowledge, to supply a current of 2,300 volts (which, it scarcely need be said, is a deadly current) was guilty of...