Beaning v. South Bend Electric Co.

• Decision Date: 02 February 1910
• Docket Number: No. 6,664.,6,664.
• Citation: 90 N.E. 786,45 Ind.App. 261
• Parties: BEANING v. SOUTH BEND ELECTRIC CO. et al.
• Court: Indiana Appellate Court

45 Ind.App. 261

90 N.E. 786

BEANING

v.SOUTH BEND ELECTRIC CO. et al.

No. 6,664.

Appellate Court of Indiana, Division No. 1.

Feb. 2, 1910.

Appeal from Circuit Court, La Porte County; John C. Richter, Judge.

Action by Thomas H. Beaning against the South Bend Electric Company and another. From a judgment for defendants upon a directed verdict, plaintiff appeals. Reversed, with directions to grant a new trial.George G. Feldman, J. F. Gallaher, and Osborn, McVey & Osborn, for appellant. A. G. Graham, Anderson, Parker & Crabill, and Chas. P. Drummond, for appellees.

RABB, P. J.

The appellee the South Bend Electric Company is a corporation, engaged in the manufacture and sale of electricity for light and power purposes, in the city of South Bend, and, by license from the city authorities, its product is carried through the streets and alleys of the city, over wires strung on poles erected therein. The appellee the South Bend Home Telephone Company is a corporation engaged in the transmission of messages, by means of electric telephone in the said city, and, by a like license from the city, is permitted to string wires upon poles erected by it along and over the streets and alleys of the city. The city of South Bend also maintains electric wires of its own for the use of the public authorities of said city, one of which wires is used as a fire alarm, connecting all parts of the city, by what is known as the “Gamewell Fire Alarm System,” with the city fire department; another is used by its police department, and by means of which its officers in various parts of the city communicate with police headquarters. These city wires are at certain places in the city attached to poles belonging to the appellee the telephone company; one of the telephone company's poles, to which was attached a city police wire, was located at the intersection of Lindsey street and Portage avenue. This pole was about 50 feet high, and had 5 cross-arms upon it, for the purpose of carrying the telephone wires. Underneath the cross-arms was a cable box, and at a convenient distance below was a wire cable seat, maintained for the workmen engaged at work on the cable box to sit upon while at work. This cable seat was supported by arms extending out from the pole, and iron braces extending from the outer edge of the seat down about three feet below to the pole. This pole was provided with iron steps, consisting of spikes driven into the pole on either side, and extending out four or five inches from the face of the pole, and located at a convenient distance from each other to enable a man to climb up the pole thereby. A cable containing a large number of wires was attached to the pole, and coming to the pole from the southeast direction, passing down the pole and beneath the cable seat, and up through the hole in the cable seat to the cable box, from whence the wires were distributed to numerous pegs on the arms of the telephone pole. This cable was connected with the cable seat by means of a small wire partially insulated. Within a distance of two feet from this pole, the appellee the electric company maintained a pole about 30 feet in height, with two cross-arms, for the purpose of carrying electric light and power wires, and upon which there was at the time of the plaintiff's alleged accident two wires, each carrying 2,200 volts of electricity. One of these wires was also attached to the telephone company's pole by means of a bracket, which held it a few inches from the body of the pole. This wire was attached in such close proximity to one of the braces supporting the cable seat, before mentioned, and to one of the steps on the pole that the person of one engaged in climbing the pole was liable to come in contact with the wire and said iron brace or steps at the same time. The appellant was engaged in the service of the city of South Bend, and the duties of his position required him to look after the city's wires, and keep them in good order for the transmission of messages over them. While he was thus engaged in the discharge of his duties to the city, he had occasion to climb the before-mentioned pole belonging to the telephone company, to which was attached the city's police wire, and, while doing so, came in contact with the electric company's wire at the time when he had hold of said brace to the cable seat, by reason of which a current of electricity was caused to pass through his body, severely burning his arms and hands, and the shock of which knocked him from the pole and caused serious injury. Appellant brought this action against the appellees, to recover damages for such injuries. His complaint proceeded upon the theory that each company was guilty of negligence proximately contributing thereto.

It is charged against the telephone company that it was negligent in attaching the cable to the cable seat with a wire, and by such means grounding the cable seat, and endangering persons who, in the performance of their duties, might rightfully climb the pole, and thereby come in contact with the cable seat, and the nearby heavy voltage wire of the appellee the electric company; and that the appellee the electric company was guilty of negligence in failing to keep their heavy voltage wire, attached to the telephone pole, properly insulated, and that these acts of negligence concurred in producing appellant's injury. A demurrer of each appellee to the complaint was overruled, issues were formed, a jury trial had, and, after the evidence was heard, the court instructed the jury to return a verdict in favor of each appellee, and the giving of this instruction is the error relied upon for the reversal of the case.

It is insisted by appellee that the judgment of the court below should be affirmed, without a consideration of the evidence in the case, for the reason that appellant's complaint fails to state facts sufficient to constitute a cause of action against either appellee. The respect in which it is claimed the complaint is defective is in its alleged failure to state facts disclosing a duty on the part of appellees, or either of them, owing appellant, to protect him from injuries alleged to have been received. This question, as it is here presented, has the same legal aspect as though the complaint had never been assailed by demurrer, and the question of its sufficiency was raised for the first time in this court; and where this is so, if the facts averred in the complaint are sufficient to bar another action for the same cause, the complaint will be deemed sufficient, and its defects cured by verdict. Major v. Miller, 165 Ind. 275, 75 N. E. 159;Embree v. Emerson, 37 Ind. App. 16, 74 N. E. 44, 1110. It is perfectly manifest that had appellant abandoned this appeal and brought a second action against appellees to recover for this same injury, and in his second complaint cured the alleged defects pointed out by appellee by the averment of facts clearly imposing a duty upon the part of appellees to exercise reasonable care to protect appellant from the injury complained of, the judgment in this case would be a complete bar to such action.

This case was submitted to the jury upon the theory that the complaint properly averred every fact essential to create liability on the part of appellees to appellant for the injury complained of, and appellant was defeated because, in the judgment of the trial court, the evidence failed to sustain the averments of the complaint, and the appellant having been thus defeated could not ignore the judgment and gain return into court with the second complaint against appellees to recover for the same injury caused by the same alleged acts of negligence, distinguished by a more amplified statement of the facts, showing the relation of parties, and more clearly exhibiting the duty owing by appellees to the appellant to protect him from the injury alleged to have been sustained; hence the decision of this appeal will necessarily turn upon the question as to whether the evidence justified the peremptory instructions given by the court. If the evidence given upon the trial of a case is insufficient in law, to sustain a verdict in favor of a party having the burden of the issue, it is not only proper, but it is the duty of the court, to direct a verdict upon such issue against such party; but if there is any evidence to sustain such verdict, no matter what its weight or character, nor how much it may apparently be overborne by more convincing evidence, conflicting therewith, the decision of the issue must be submitted to the jury. Pennsylvania Co. v. McCormack, 131 Ind. 250, 30 N. E. 27;Jacobs, Administrator, v. Jolley, 29 Ind. App. 25, 62 N. E. 1028, and cases there cited. And the evidence, in the sense here used, consists, not only in what directly appears from the testimony of the witnesses, and is shown by writings or exhibits introduced in evidence, but also what may reasonably be inferred from what is thus shown. Here there were two defendants, and the separate motion of each for a peremptory instruction was sustained, and, if the evidence was such as viewed in its most favorable light for appellant, would sustain a verdict and judgment in his favor against either appellee, then, as against such appellee, the judgment must be reversed.

The evidence disclosed the facts hereinbefore related, and, in addition to these, there was also evidence from which the jury might have found that the city's fire alarm and police wires ran through a network of wires belonging to appellee the telephone company attached to the arms of the telephone pole, from which the appellant fell, and in close proximity to it, and that these wires of the city and the telephone company were at all times liable to, and often did, come in contact with each other, and that when they did so such contact interfered with the usefulness of both wires, and that in order to keep the wires both of the telephone company and the city...