Arkansas Valley Ry., Light & Power Co. v. Ballinger

• Citation: 65 Colo. 548,178 P. 566
• Decision Date: 06 January 1919
• Docket Number: 9261.
• Parties: ARKANSAS VALLEY RY., LIGHT & POWER CO. v. BALLINGER.
• Court: Supreme Court of Colorado

178 P. 566

65 Colo. 548

ARKANSAS VALLEY RY., LIGHT & POWER CO. v. BALLINGER.

No. 9261.

Supreme Court of Colorado

January 6, 1919

Error to District Court, Teller County; John W. Sheafor, Judge.

Action by Iola M. Ballinger against the Arkansas Valley Railway Light & Power Company, a corporation. Judgment for plaintiff and defendant brings error. Affirmed.

William J. Miles, of Denver, for plaintiff in error.

Frank J. Hangs, of Cripple Creek, for defendant in error.

SCOTT J.

This an action by defendant in error, plaintiff below, to recover damages on account of the death of her husband, alleged to have been caused by the negligence of the defendant power company.

The defendant company was engaged in supplying electric power and machinery to its patrons in the Cripple Creek mining district. In this case it had employed the Colorado Trading &amp Transfer Company, then engaged in the business, among other things, of moving machinery and materials in and about the district, to move two electric transformers, then located at its Los Angeles distributing station to another point.

One Yates was in charge of the trading company's work of handling and moving heavy machinery, and, working with and under the direction of Yates, the plaintiff's husband was employed. These men proceeded with teams to the distributing station for the purpose of moving the transformers. At the time, Mr. Nevatt who had charge of the station for the defendant was absent. He lived, however, with his family in a part of the building. Yates asked Mrs. Nevatt which of the transformers was to be moved. She thereupon called her husband over the telephone, who advised her, and which information she conveyed to Yates. Yates and Ballinger then proceeded to place the transformer on a truck operated on a track and for that purpose, and moved the truck with the transformer toward the door. The men then discovered that the transformer would not go under the door, this being a door that was raised and lowered by means of a cable and pulley. Yates then asked Mrs. Nevatt to advise her husband of this fact and for instructions in the premises. Nevatt then instructed that the door be removed, and testifies that he ordered it removed south and placed south of the doorway.

In the meantime an employé of defendant, relative of Mrs. Nevatt, and apparently employed about the premises, advised Yates of the location of a lightning arrester and that it was made to carry the main current of electricity and asked them to be careful to guard against contact with it. This man afterward and before the accident turned on the current in the arrester, which seemed to make so much noise and cause so many sparks as to frighten Ballinger, who was unused to electrical machinery. Yates and Ballinger proceeded to move the door toward the north, but, after moving it some distance, were unable to proceed for the reason that the cable which had been spliced at the point would not go through the pulley. Yates then found that it would be necessary to remove the clevice from the pulley in order for the cable to pass over it. He discovered that there were two electric wires running above the pulley and asked of the watchman as to whether or not they were charged, and who advised him that they were not, but were 'dead' wires.

He then secured a ladder and instructed Ballinger to go upon it and release the clevice. This Ballinger did and with a monkey-wrench undertook to turn the nut on the bolt holding the clevice. In doing this the wrench slipped from the nut, striking one of the two wires which was in fact charged with electricity, Ballinger thereby receiving the current, from the effect of which he lost control of his muscles and sank or fell on the arrester, where he received the stock that finally caused his death.

It appears that the wire which was so struck by the wrench was bare, or not insulated, for a space of about two inches at that point. The door was covered on both sides with sheet iron, and the testimony is that, if Ballinger had one hand on the door, this would create a short circuit causing the current to pass through his body.

Verdict and judgment was rendered for the plaintiff.

The plaintiff in error contends that the court erred in refusing to permit it to introduce testimony in support of its defense alleging that the plaintiff had filed her claim for compensation with the Industrial Commission under the Workmen's Compensation Law, and that thereby, and by operation of law, she had assigned whatever right or cause of action she may have had against the defendant on account of the death of her husband, and is not now the owner of said claim.

The court permitted such testimony in the absence of the jury, but excluded the same from the jury.

The defendant did not plead that either Ballinger or his employer, the Colorado Trading & Transfer Company, were at the time subject to the provisions of the Workmen's Compensation Law (Laws 1915, c. 179), which is a necessary prerequisite to recovery under that law, and for such reason alone the testimony was properly excluded.

But the testimony offered shows that the plaintiff did not make any such application. What she did was to write the commission a letter stating the fact of the accident and death of her husband and that she would apply for compensation. The commission replied to this letter inclosing an application blank, but nothing further was done. This...