Barnett v. Des Moines Electric Co.

• Decision Date: 09 December 1925
• Docket Number: No. 6887.,6887.
• Citation: 10 F.2d 111
• Parties: BARNETT v. DES MOINES ELECTRIC CO.
• Court: U.S. Court of Appeals — Eighth Circuit

10 F.2d 111 (1925)

BARNETT v. DES MOINES ELECTRIC CO.

No. 6887.

Circuit Court of Appeals, Eighth Circuit.

December 9, 1925.

Thomas A. Cheshire, of Des Moines, Iowa (C. C. Putnam, of Des Moines, Iowa, on the brief), for plaintiff in error.

Charles S. Bradshaw, of Des Moines, Iowa (Casper Schenk and Rex H. Fowler, both of Des Moines, Iowa, on the brief), for defendant in error.

Before LEWIS and BOOTH, Circuit Judges, and PHILLIPS, District Judge.

PHILLIPS, District Judge.

William T. Barnett (hereinafter called plaintiff) brought this action against the Des Moines Electric Company (hereinafter called defendant) to recover damages for personal injuries.

The plaintiff was a resident of 1829 Mondamin avenue, Des Moines, Iowa. On August 11, 1923, at about 7:30 o'clock p. m., the electric lights in plaintiff's house went out, while he was eating his evening meal. He immediately got up and went out to the sidewalk in front of his house. Mondamin avenue runs east and west. The plaintiff's house was on the north side of the avenue, facing the south. The electric light wires of the defendant ran along the south side of the avenue. When plaintiff came out, one Mrs. Markley was sitting in a rocking chair on the sidewalk in front of her home, which was located on the north side of the avenue immediately west of plaintiff's house. Across the avenue from plaintiff's home, the wires passed through a tree, situated about 44 feet distant from the nearest electric light pole on the west and about 67 feet distant from the nearest electric light pole on the east. One of the wires had broken, and one end, about 67 feet in length, attached to the east pole, had fallen across the pavement and doubled back in a sort of semicircle. The plaintiff noticed this wire lying in the street. East of the plaintiff, a distance of 25 to 30 feet, six or eight children were playing in the street. Plaintiff requested Mrs. Markley to get him some old rags, so that he might remove the wire and prevent the children from being burned. Mrs. Markley went into the house. Without awaiting her return, plaintiff folded a napkin which he had carried with him from the supper table, stepped off of the curb onto the pavement, and placed the napkin over the wire near the end. After testing the wire with his fingers, he seized the wire where he had placed the napkin about it, and started to carry it across the avenue, intending to wind it around the pole and up off of the ground. At the time plaintiff picked up the wire, the children were off a distance of 25 or 30 feet. Before touching the wire, the plaintiff had noticed a glow at the bottom of the east pole, to which the other end of the wire was fastened. As plaintiff carried the wire it emitted sparks and flashes, and made considerable noise whenever it touched the ground. When plaintiff reached the curbing on the opposite side of the avenue — the south side — and stepped onto the parking, he received an electric shock which knocked him down, and the electric current passed through his body, and severely burned his hands, body, and lower limbs. For these injuries he sought to recover damages in this action.

Plaintiff testified that his reason for attempting to remove the wire was his fear that the children would come in contact with it and be burned and injured. At the time he took hold of the wire he knew it was an electric light wire, and apprehended that it was dangerous. He relied upon the napkin to protect him. On this point he testified:

"I thought that the napkin was a sufficient protection for my hands. I thought I might get my fingers burned if I took hold of it with bare hands, and that the children might get burned if they got on it. I did not want to get burned, and exercised care all the way through to use the napkin. When I used both hands, I looked to see that I was placing both of them on the napkin. I relied upon the napkin to protect me from the current."

At the time of the accident, plaintiff was 42 years of age, and a man of considerable experience and travel. He had a public school education and had also taken a six months' business course in Spencer University. He had resided during different times at Birmingham, Mobile, Evansville, Kansas City, Missouri, Atlanta, Indianapolis, Grand Rapids, Terre Haute, Philadelphia, and Des Moines.

Plaintiff charged in his petition that the defendant was negligent in the maintenance of its electric wires, in failing to trim the trees so as to keep the branches from rubbing the wires and causing them to break, in failing to keep the wires properly insulated, and in failing to give warning of the danger from the high voltage carried through the wires.

In its answer defendant denied its negligence and set up a plea of contributory negligence.

At the close of plaintiff's evidence on motion of the defendant, the court directed a verdict in favor of the defendant upon the ground that the plaintiff was guilty of contributory negligence as a matter of law. Judgment was entered accordingly, and from that judgment this writ of error was sued out.

It is well settled as a general rule that, where a person with knowledge of the dangerous character of an electric wire purposely comes in contact with it, he is guilty of contributory negligence and cannot recover for the resulting injury. Morris v. Kansas City Light & Power Co., 302 Mo. 475, 258 S. W. 431; Croteau v. Twin State Gas & Electric Co., 79 N. H. 515, 112 A. 397; Billington v. Eastern Wisconsin Ry. & Light Co., 137 Wis. 416, 119 N. W. 127; Glander v. Milwaukee Electric Ry. & Light Co., 155 Wis. 381, 144 N. W. 972; McNamee v. Western Union Teleg. Co., 140 App. Div. 874, 125 N. Y. S. 622; Id., 160 App. Div. 785, 145 N. Y. S. 981; Frauenthal v. Laclede Gas Light Co., 67 Mo. App. 1; Shade et al. v. Bay Counties Power Co., 152 Cal. 10, 92 P. 62; City of Owensboro v. Winfrey et al., 191 Ky. 106, 229 S. W. 135; Capital Gas & E. L. Co. v. Davis' Adm'r, 138 Ky. 628, 128 S. W. 1062; Druse et al. v. Pacific Power & Light Co., 86 Wash. 519, 150 P. 1182; Williams et al. v. Metropolitan Edison Co., 267 Pa. 158, 110 A. 92; Haertel et al. v. Pennsylvania Light & Power Co., 219 Pa. 640, 69 A. 282, 9 R. C. L. p. 1202, § 14; 20 C. J. p. 375.

Counsel for plaintiff assert that the above rule is limited by the principle that where a person seeks to rescue another from imminent danger, and in the effort imperils his own life, he is not as a matter of law guilty of contributory negligence, unless his act is so rash and reckless that a person of ordinary prudence would not undertake it. They contend that the facts in this case bring it within the above principle and in support thereof cite the following cases: Eckert v. L. I. R. Co., 43 N. Y. 502, 3 Am. Rep. 721; Pennsylvania Co. v. Langendorf, 48 Ohio St. 316, 28 N. E. 172, 13 L. R. A. 190, 29 Am. St. Rep. 553; Pittsburg, C., C. & St. L. Ry. Co. v. Lynch, 69 Ohio St. 123, 68 N. E. 703, 63 L. R. A. 504, 100 Am. St. Rep. 658; Becker v. Louisville & N. R. Co., 110 Ky. 474, 61 S. W. 997, 53 L. R. A. 267, 96 Am. St. Rep. 459; Corbin v. City of Philadelphia, 195 Pa. 461, 45 A. 1070, 49 L. R. A. 715, 78 Am. St. Rep. 825; West Chicago St. R. Co. v. Liderman, 187 Ill. 463, 58 N. E. 367, 52 L. R. A. 655, 79 Am. St. Rep. 226; Linnehan v. Sampson, 126 Mass. 506, 30 Am. Rep. 692; Dixon v. New York, N. H. & H. R. Co., 207 Mass. 126, 92 N. E. 1030; Saylor v. Parsons et al., 122 Iowa, 679, 98 N. W. 500, 64 L. R. A. 542, 101 Am. St. Rep. 283; Railroad Co. v. Ridley, 114 Tenn. 727, 86 S. W. 606; State, to the use of Dove et al., v. Mayor and City Council of Baltimore, 141 Md. 344, 118 A. 753; Louisville & N. R. Co. v. Orr, 121 Ala. 489, 26 So. 35; Norris v. Atlantic C. L. R. Co., 152 N. C. 505, 67 S. E. 1017, 27 L. R. A. (N. S.) 1069; Gibney v. State, 137 N. Y. 1, 33 N. E. 142, 19 L. R. A. 365, 33 Am. St. Rep. 690; Chattanooga Light & Power Co. v. Hodges, 109 Tenn. 331, 70 S. W. 616, 60 L. R. A. 459, 97 Am. St. Rep. 844; Bracey et al. v. Northwestern Improvement Co. et al., 41 Mont. 338, 109 P. 706, 137 Am. St. Rep. 738; Workman v. Lincoln T. & T. Co., 102 Neb. 191, 166 N. W. 550; City of Tipton et al. v. Racobs, 47 Ind. App. 681, 95 N. E. 265; Dillon v. Allegheny County Light Co., 179 Pa. 482, 36 A. 164.

Additional authorities on this proposition may be found in 19 A. L. R. 4.

In Eckert v. Railroad Co., supra, plaintiff's intestate was standing near the track of the defendant company. A small child, three or four years old, was sitting upon the track, in front of an approaching train. Plaintiff's intestate, seeing the danger, ran to the child, seized it, and threw it clear of the track on the side opposite to that from which he came, but, continuing across the track himself, was struck by the locomotive, thrown down, and received injuries from which he died. The court said:

"Under the circumstances in which the deceased was placed, it was not wrongful in him to make every effort in his power to rescue the child, compatible with a reasonable regard for his own safety. It was his duty to exercise his judgment as to whether he could probably save the child without serious injury to himself. If, from the appearances, he believed that he could, it was not negligence to make an attempt so to do, although believing that possibly he might fail and receive an injury himself. He had no time for deliberation. He must act instantly, if at all, as a moment's delay would have been fatal to the child. The law has so high a regard for human life that it will not impute negligence to an effort to preserve it, unless made under such circumstances as to constitute rashness in the judgment of prudent persons." (Italics ours.)

In the Eckert Case, as stated by the court, plaintiff's intestate had no time for deliberation. He was called upon to act instantly. A moment's delay would have been fatal to the child. No such condition existed in the case at bar. Not only did plaintiff have time for...