E.A. Arnold v. Northern States Power
| Decision Date | 21 March 1941 |
| Docket Number | 32,610,32,627 |
| Citation | 297 N.W. 182,209 Minn. 551 |
| Parties | E.A. Arnold v. Northern States Power Company And Another |
| Court | Minnesota Supreme Court |
Action for wrongful death in the district court for Stearns county by the special administrator of the estate of Frank P. Arnold against the Northern States Power Company and Al Marsolek. The case was tried before D. M. Cameron, Judge, and a jury. After verdict of $7,000 for plaintiff, defendants separately appealed from orders denying their alternative motions for judgment or a new trial. Affirmed.
Charles H. Weyl and Lystad, Mantor & Day, for appellant Northern States Power Company.
Sexton Mordaunt, Kennedy & Carroll, for appellant Al Marsolek.
Freeman & King and Edward F. Jacobsen, for respondent.
The opinion of the court was delivered by: Olson
Negligence -- person injured in voluntary rescue of another from danger -- right of action.
1. A person who voluntarily attempts to rescue one whose life is imperiled by the negligence of another, if injured in the attempt, may recover therefor from the negligent person if the act of attempted rescue be not one of extreme recklessness.
Negligence -- person injured in voluntary rescue of another from danger -- contributory negligence of volunteer.
2. To relieve oneself from a charge of contributory negligence as a matter of law for attempting to save persons from harm, it is sufficient if, to a reasonably prudent person, the existing circumstances create the apprehension of danger, even though danger to a definite person was not actually imminent at the moment.
Electricity -- damage to power line -- electrocution of person assisting injured motorist -- negligence of power company.
3. Where defendant M so negligently drove his car that it left the highway, smashed into and broke a near-by pole carrying the highly charged electric wires of defendant power company thereby causing the pole to fall toward and partly upon the highway so that the wires endangered traffic thereon, held that under the evidence the jury could find that there was a dangerous traffic situation presented, requiring, after notice thereof, prompt action on the company's part to take more efficient and prompt means to safeguard the public than that employed by it, and that its failure so to act constituted a cause contributing to the death of plaintiff's intestate, who came into contact with a wire carrying 33,000 volts.
Electricity -- damage to power line -- electrocution of person assisting injured motorist -- negligence of power company.
Negligence -- acts constituting negligence.
4. The fact that power company did not create the dangerous situation does not relieve it from liability where, as here the jury could find, as it did, that its inactivity after notice and knowledge of the situation amounted to a breach of duty. Inaction where duty requires action is just as potent a factor in the chain of causation as action where legal duty requires none.
Negligence -- intervening cause of injury.
5. M's original negligence in setting in motion the lethal cause was not insulated by the power company's subsequent inaction, since to constitute an intervening cause the intervening force must have been one which came into active operation in producing the result after M's original negligent act. "Intervening" is used in time sense it refers to later events. Conditions existing and forces already in operation at the time of M's negligent conduct are not included within the term.
Appeal and error -- review -- instruction to disregard testimony admitted -- prejudicial effect.
6. Where a witness was interested in the result of the action as a beneficiary in event of recovery and, as such, under our statute, was precluded from testifying to conversations with such deceased person, and court erroneously admitted such testimony, and where, upon later discovery of error, court instructed jury to disregard that testimony, held that there was no error, since jury is presumed to have heeded court's instructions.
Evidence -- res gestae -- evidence admissible.
7. A statement received in evidence as res gestae, which was made under a situation which sprang out of the transaction, was spontaneous, and generated by an excited feeling extending without break or letdown from the moment of the event to the moment of the utterance, and under such circumstances as reasonably to preclude the idea of calculation of deliberate deceit, held properly admitted under the res gestae rules.
Defendants separately appeal from orders denying their respective alternative motions for judgment or a new trial.
Plaintiff's intestate was killed by coming into contact with a high-tension wire carrying 33,000 volts, the same being part of the electric service system of defendant power company. The place of accident was about half a mile west of St. Cloud adjacent to and south of the paved and much used trunk highway No. 52.
Defendant Marsolek's connection with the accident and the reason for his presence in this case arose in this way: During the early morning, about 5:43 o'clock, on July 31, 1937 while driving his car east toward St. Cloud on this highway, for reasons wholly unexplained by him, the car suddenly left the pavement, plunged to the right, and smashed against a large pole of the power company carrying three highly charged, uninsulated wires. The force of the impact broke off a five-foot portion of the lower part thereof, thereby causing the pole, with its crossarms and wires, to fall toward the north and to extend onto the pavement about 10 or 12 inches, thus encroaching upon the southerly traffic lane of the highway and lowering the wires on the poles to a point two to four feet above the pavement. The poles, which are over 20 inches in diameter at the base and some 50 feet high, are set about 300 feet apart. Accordingly, when the pole in question was broken it left a span of sagging wire of approximately 600 feet. Marsolek testified: "I collided with this pole, and my mind was rather hazy and I was knocked out. * * * -- in fact I haven't any recollection of just what happened." One Trebtoske was seated at Marsolek's right in the front seat. He was "instantly killed," the "right part" of the car having struck the pole.
Witness Mrs. Isaacson, living near-by and hearing "a terrific crash," went to the door and saw at St. Cloud and "told them to notify the Northern States that the high line was down." Her two boys, 16 and 18 years of age at the time of trial, were awakened, and she instructed them to "go down and see if you can do anything, but keep away from the wires." After putting in the telephone call, she donned a bathrobe and hurried to the scene of the accident. When she got there only a "very few" persons had gathered, and she with the others "were all on the north side of the highway," toward the easterly end of a driveway leading up to the "Morocco Night Club," immediately to the north and adjacent to highway No. 52. There "was no one at all" south of the highway center line. People continued to gather so that when the car in which deceased was riding arrived there were probably "about a dozen or 15 there."
Ebnet, the police officer who took the call, immediately notified the power company and informed Mr. White, foreman of the maintenance department, that someone had broken one of the poles at or near the "Morocco Night Club." This call was put through at 5:45 a.m. Ebnet then drove to the scene. Mr. White telephoned Sorenson, a lineman for the company, and told him to look for the trouble there and to call him back. When Sorenson arrived the wires were handing down along the south side of the highway. He knew these carried 33,000 volts and were "hot." He brought no equipment. Observing the condition there and considering it a very dangerous one, he nevertheless left the scene to telephone Mr. White without leaving anyone to stand guard. He also knew that he was the only employe of the company there. Upon his return, after telephoning Mr. White, plaintiff's intestate had been electrocuted.
Trebtoske was thrown out of Marsolek's car. The latter asked one Zenner to notify Father Kroll, a priest living near-by, to come and administer the last rites. This was done, and both Zenner and the priest walked under the wires where they were high to where Trebtoske was lying in the ditch. This was the situation immediately prior to the arrival from the west of Jacob Arnold and his father, plaintiff's intestate.
Jacob was driving his own car, his father sitting to his right. Jacob saw policeman Ebnet, who was standing some 75 feet west of the broken pole. He was directing traffic so as to lead drivers to the north and over the Morocco driveway. Jacob, however, did not understand what the warning was intended to accomplish, so he drove his car a little farther to the east and then onto the Morocco driveway. In so doing he passed the broken pole, saw the Marsolek automobile in the ditch, and that someone was badly hurt. Both Jacob and his father hurriedly got out, Jacob on the left, his father on the right, side of the car. After Jacob had got out on the north side, he observed his father walking hurriedly across the pavement to the south, saying, "Well, let's go over there and help," referring to the car in the ditch and to Marsolek, who appeared to be severely hurt, bleeding at the mouth and apparently dazed. While attempting to go under the wires decedent came in contact with one of them with the result stated. The morning was bright and clear, the pavement and shoulders dry, and visibility good.
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