Beddow's Adm'R v. Barbourville W., I. & L. Co.
| Decision Date | 15 December 1933 |
| Court | United States State Supreme Court — District of Kentucky |
| Parties | Beddow's Adm'r v. Barbourville Water, Ice & Light Company et al. |
2. Witnesses. — Statute providing that neither husband nor wife shall testify against or for other did not render wife's testimony inadmissible in action by husband's administrator for husband's wrongful death, since wife testified against husband's estate and not against husband .
3. Appeal and Error; Witnesses. — In administrator's action for death from contact with power wire, admitting wife's testimony regarding deceased's statement, made before injury, concerning wire being down, held error as communication between husband and wife during marriage, and prejudicial where bearing on contributory negligence of deceased .
4. Evidence. — Repairman held not qualified to express opinion that power wires magnetized concrete sidewalk so that deceased, killed by contact with wire, would have been killed without contact.
5. Evidence. — In administrator's action for death from contact with power wire, repairman's testimony that wires magnetized concrete sidewalk so that deceased would have been electrocuted without contact with wires held inadmissible as assuming situation not proven and contrary to physical facts.
6. Judgment; Pleading. — Defenses in answer filed by one defendant which would preclude recovery by plaintiff inured to benefit of codefendant filing no answer, and no judgment could be filed against either defendant until issues raised had been disposed of.
7. Pleading. — Plaintiff failing to move at outset of trial to have allegations of petition taken as confessed as to defendant who allegedly filed no answer and treating answer filed as answer of both defendants waived alleged failure to answer.
Appeal from Knox Circuit Court.
J.B. CAMPBELL and R.L. POPE for appellant.
J.J. TYE and H.H. OWENS for appellees.
Reversing.
J.T. Beddow's administrator brought this action against the Barbourville Water, Ice & Light Company and L.R. Benjamin, its manager, to recover damages for his death. At the conclusion of the evidence, the trial court directed the jury to find for the defendants. The administrator appeals.
Beddow, who was a merchant, lived on Main street in the city of Barbourville. He intended to go fishing on the morning of June 25, 1931. The evening before he had obtained some crawfish, which had been placed in a bucket with an iron bail. The next morning he arose about 4 o'clock and milked his cow, while his wife and the girl who worked for her were getting his breakfast. He returned with his milk, ate his breakfast, got his bucket containing the crawfish, and then started toward the main part of the city, through which he had to go in order to reach the river. There were no fences between the adjoining lots, and none between the sidewalk and yards. After walking across the edge of his own yard on to the sidewalk about the edge of his neighbor's yard, he returned to his home, and, according to Mrs. Beddow, his widow, who also testified that she did not think the lights were turned off in the kitchen before he left, he said: "That there was a wire down there up on the street and for me to watch the children and not let them get in to it, and he would go to the store and call them, and they would be up after a while and fix it." He then left the house, and when next seen was lying on his back, dead, with one wire across his right thigh, and another wire in a short distance from him. These were primary wires with a 2,300 voltage, and were used for the purpose of transmitting electricity to be used in lighting the streets. Beddow's hands were folded on his breast, with the right hand on top The inside of his right hand was burned and black. Some say that there was insulation in his hand, and others that there was not. There were places on the wires that were uninsulated. The bucket containing the crawfish was lying on the left side of Beddow. Some of the witnesses say that there were dead crawfish on the sidewalk, but others say that they saw none that were dead, but only those that were crawling around.
At the outset, we are met by the contention that Mrs. Beddow's evidence as to the statement made to her by her husband should have been excluded. It doubtless is true that she was not incompetent under section 606, subsec. 2, Civil Code of Practice, as to the prohibition therein contained against testifying concerning any verbal statement of one who is dead at the time the...
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