Hellweg v. Chesapeake & Potomac Telephone Co.
Decision Date | 05 February 1940 |
Docket Number | No. 7266.,7266. |
Citation | 71 App. DC 346,110 F.2d 546 |
Parties | HELLWEG v. CHESAPEAKE & POTOMAC TELEPHONE CO. |
Court | U.S. Court of Appeals — District of Columbia Circuit |
Harry H. Bettelman, H. Max Ammerman, and Bernard Shankman, all of Washington, D. C., for appellant.
George P. Hoover and Ralph A. Van Orsdel, both of Washington, D. C., for appellee.
Before GRONER, Chief Justice, and MILLER and VINSON, Associate Justices.
Appellant is the superintendent of the United States Naval Observatory in Washington, D. C. On the afternoon of June 6, 1934, while using the telephone in his office, he was struck in the ear by a discharge of electricity which flowed from the receiver of the telephone. An electrical storm was in progress at the time of the accident; and a flash of lightning occurred simultaneously.
Upon the closing of appellant's case — as plaintiff in the court below — and upon appellee's motion, the court directed the jury to return a verdict for appellee, for the reason that appellant had failed to prove negligence upon the part of appellee. As the motion to direct a verdict admitted every fact in evidence which tended to sustain appellant's case, and every inference reasonably deducible therefrom,1 it follows that unless there was no evidence in the present case from which — when subjected to the applicable standard of conduct — a jury could reasonably have concluded that appellee was negligent, the action of the court, in directing a verdict, was erroneous.2 It is necessary to determine, therefore, first, the standard of care applicable under the circumstances of this case, and second, whether — when tested by that standard — the evidence was sufficient, reasonably, to support a verdict in favor of appellant.3
In their briefs, and on argument, counsel for the opposing parties agreed that the applicable rule, generally adopted throughout the United States, was correctly stated in Griffith v. New England Telephone & Telegraph Co.4 The applicable language of that case, which has been quoted, frequently, in the decisions of other jurisdictions, reads as follows:5
That, however, was not the standard applied by the lower court. In the instructions which he gave to the jury, in directing a verdict, the judge said:
Thus, a standard of "customary use" was substituted for the proper standard of "due care in selecting, placing, and maintaining * * * such known and approved appliances as were reasonably necessary * * *." An exception, based upon a similar erroneous concept, was noted and rejected by the Supreme Court, in Texas & Pacific R. Co. v. Behymer,6 as follows: "What usually is done may be evidence of what ought to be done, but what ought to be done is fixed by a standard of reasonable prudence, whether it usually is complied with or not." While there may appear to be some confusion upon this point in the language of earlier cases decided by this court,7 the rule stated by the Supreme Court, and followed generally by the federal courts,8 provides a clearly marked pathway for us to follow.
In the present case, therefore, while evidence of installation and use of appliances customarily used was properly received, it was not conclusive. The jury might have found, from all the evidence, that installation and use of appliances customarily used constituted negligence, if it also found that other known and approved appliances were reasonably necessary under the circumstances.9 It is significant in this respect that — according to the evidence introduced by appellant — the situation existing at the Naval Observatory was one of unusual character, i. e., that a copper roof resting on steel beams, the ends of which in turn were exposed, created an unusual hazard; that appellee installed its wires in close proximity to these and other conductors of electricity; and that this made necessary, in order to provide reasonable protection from foreign currents, the installation of known and approved appliances other than, and in addition to, those customarily used. In the light of this evidence, the question was one for the jury to determine and the lower court erred in directing a verdict.
It is not necessary for us to consider the other contentions and assignments.
Reversed and remanded for further proceedings consistent with this opinion.
1 Faucett v. Bergmann, 57 App.D.C. 290, 291, 292, 22 F.2d 718, 719-720; Glaria v. Washington Southern Ry., 30 App.D.C. 559, 563; Jackson v. Capital Transit Co., 69 App.D.C. 147, 99 F.2d 380, certiorari denied, 306 U.S. 630, 59 S.Ct. 464, 83 L.Ed. 1032.
2 Boaze v. Windridge & Handy, Inc., 70 App.D.C. 24, 102 F.2d 628, 629: "If fair minded men may honestly draw different conclusions as to the existence or nonexistence of the negligence charged, the question is not one of law but of fact to be settled...
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