Ahern v. Oregon Telephone & Telegraph Co.

• Citation: 24 Or. 276,33 P. 403
• Parties: AHERN v. OREGON TELEPHONE & TELEGRAPH CO.
• Decision Date: 19 June 1893
• Court: Supreme Court of Oregon

33 P. 403

24 Or. 276

AHERN v. OREGON TELEPHONE & TELEGRAPH CO.

Supreme Court of Oregon

June 19, 1893

Appeal from circuit court, Multnomah county; E.D. Shattuck, Judge.

Action by Eugene Ahern against the Oregon Telephone & Telegraph Company for personal injuries. Judgment for plaintiff, and defendant appeals. Affirmed.

Chas. H. Carey, for appellant.

James Gleason and A.F. Sears, for respondent.

LORD, C.J.

This is an action to recover damages for a personal injury alleged to have been caused by the negligence of the defendant in permitting its wire to come in contact with an electric wire whereby it became heavily charged with electricity, and in allowing such wire to hang down so near the ground at the corner of K and Twenty-First streets as to endanger the life and limb of those traveling upon such streets.

The errors assigned relate to the refusal of the trial court to grant a nonsuit, and to certain instructions given and refused. Upon the first point the contention is that the evidence does not prove the cause of action alleged although it may be sufficient to constitute a ground of action, and consequently that the variance is fatal to the plaintiff's recovery. It is no doubt true that the plaintiff must state the facts which constitute his cause of action, and that he cannot state one and prove another. The Code, with all its comprehensive liberality, will not admit as Sherwood, C.J., said, "a plaintiff to sue for a horse and recover a cow." Waldhier v. Railroad Co., 71 Mo. 518. Such variance is fatal, for the reason that the cause of action is unproved in its entire scope. The inquiry then, is whether the testimony for the plaintiff establishes a cause of action different from the one alleged. That there is some variation between the evidence and the complaint may be conceded, but it consists only in matter of detail, or as to how the injury occurred. There is no absolute departure in the proof from the original theory of the case. The point to which the variance relates is this: The allegation, in substance, is that the plaintiff was walking along the sidewalk, and came in contact with the wire, which, owing to the darkness, he was unable to see; and that he attempted to remove the same from his pathway, and in doing so he caught hold of the wire and the electricity with which it was impregnated passed into his body, etc.; whereas his testimony shows that he was walking along the sidewalk, and, it being dark, and, owing to the rain, the pavement slippery, that he slipped, and fell on his elbow, causing his hat to fall off, and some packages to drop out of his hands, and that in groping for his hat and packages his hand came in contact with the wire, which, being impregnated with electricity, "grabbed" it, and, as he could not let go, he put out his other hand to remove the same, when it "grabbed" that hand, etc. Plainly, the variation here is only of detail, or as to the circumstances under which the plaintiff came in contact with the wire and received the injury. The elements of negligence alleged, namely, in permitting its wire to come in contact with the electrical wire, and to hang so near the ground as to endanger life or limb, are present in either aspect of the case, or as much under the testimony as the allegation. Such variance does not present a case where the cause of action is unproved in its entire scope and meaning, within the construction of the Code. Section 98, Hill's Code. Hence there is not a failure of proof, and without such failure the variance is not fatal, or such as would entitle the defendant to a judgment of nonsuit.

The principal ground of complaint remains, however, to be considered. This is, was the negligence of the defendant the proximate cause of the injury? There are some other minor questions suggested by way of criticism upon the charge of the court, but the remoteness of its acts, and the intervention of other agencies directly contributing to plaintiff's injury, are relied upon as its chief defense. It was the failure of the court, as indicated by the instructions given and refused, to properly apply the law in this regard that constitutes the main grievance of the defendant. To comprehend the force of this objection, we must first know and understand the facts. The plaintiff is a laboring man, and was employed by the gas company to shovel coal into its furnace. On the day of the accident he quit work after 5 o'clock P.M., and started for his home, but on his way went to market, made some purchases, and went out G street to Twenty-First, and, when passing down that street, near the corner of K, he slipped on the sidewalk, and fell on his elbow, his hat falling off, and the packages which he carried flying out of his hands. After he got up he groped for his packages and hat, when his hand rubbed against a wire, one end of which was hanging down over the sidewalk at the intersection of the streets. His testimony on this point is: "My hand rubbed against this wire, grasping hold of me fearfully. I then took the notion to put up this hand to hit this one away from there. It grabbed that one, and held on to it fearfully. I could not let go; it was too strong. I don't know what part of my hand catched hold of it My fingers rubbed it first. It tore me fearfully, like machinery with about 200 pounds of steam. I was screaming awfully, and finally I saw people around the sidewalk; and this hand after a while dropped from the wire. That must have been the time my toes got burned. It whirled me up in all sorts of shapes. I don't know how I was. When this hand dropped I hung on with it until I was released. After this hand dropped I had no more memory at all. I lost my senses. I don't know what happened after that." Several persons hearing his screams for help, two men ran from J street to his assistance, and one of them slashed at the wire with his knife, and received a severe shock, but did not sever it. After some hesitation, he slashed it again, and succeeded in cutting the wire. The defendant was assisted to his home and put to bed, when it was found that three toes were badly burned. Afterwards he was taken to the hospital, and one toe was amputated and the others were trimmed off. It was after 6 o'clock, and quite dark, when the accident occurred, and the sidewalk was slippery from recent rain. The defendant could not see the wire, nor did he know that it was hanging down over the street, nor that it was charged with electricity. The wires of the telephone company were strung on K street, running east and west, and the wires of the electric light company and the electric street-railway company were strung along Twenty-First street, running north and south, so that the wires of the defendant were at right angles to the wires of the two electric companies.

The evidence further shows that the defendant had an arrangement with the electric light company by which either might use the poles of the other upon which to string a wire when it had no poles at the place, and only a short distance of wire was to be used; that the defendant used the poles of the electric light company when wiring the residence of a Mr Bates, at the corner of H and Twenty-First streets, but that some three months before the accident the wire was disconnected from the telephone at his residence, and wrapped around the electric pole, and made fast by tying it on a bracket and winding around the pole and around itself; that such wire had not been used by defendant after it was so disconnected, nor had the company made any inspection of it from that time until the accident; that during this interim the electric company changed its poles and wires along Twenty-First street, and in doing so took down the pole belonging to it upon which the telephone wire was fastened as aforesaid, coiled up the wire, and hung it on a pole belonging to the defendant, near K and Twenty-First streets, where the accident happened; but that the defendant had no knowledge that the electric company had taken down its poles, or taken down its wire, and hung it on the pole as aforesaid. Richard Gerdes testified that he was in the employ of the electric light company, and that on the night of the accident he received a message by telephone that a man had been hurt by an electric light wire; that he went at once to the place where the accident occurred, and found the wire hanging on the pole; that he cut it above the coil; that it was heavily charged with electricity by contact with a wire belonging either to the electric street railway or the electric light company; that it must have been the wire of one or the other that charged it with electricity, as there was no other heavily charged wire in that vicinity. The evidence further shows that the day before the accident the wire was hanging in the form of a coil on a stick at the side of the telephone pole, and that the bottom of it was two or three feet from the ground; that it was heavily charged with electricity, and that one witness, who...