Bourke v. Butte Electric & Power Co.

• Decision Date: 27 November 1905
• Citation: 83 P. 470,33 Mont. 267
• Parties: BOURKE v. BUTTE ELECTRIC & POWER CO. et al.
• Court: Montana Supreme Court

83 P. 470

33 Mont. 267

BOURKE v. BUTTE ELECTRIC & POWER CO. et al.

Supreme Court of Montana

November 27, 1905

Appeal from District Court, Lewis and Clarke County; Henry C. Smith Judge.

Action by Martin Bourke against the Butte Electric & Power Company and another. From a judgment in favor of plaintiff defendants appeal. Affirmed.

This action was commenced in Silver Bow county by the plaintiff Bourke, to recover damages for personal injuries received by him by coming in contact with an electric light wire charged with electricity. The defendants originally were the Butte Electric & Power Company, the Butte Lighting & Power Company the Butte General Electric Company, and George T. Aiken. Afterwards, on plaintiff's motion, the action was dismissed as to the Butte Lighting & Power Company and the Butte General Electric Company, and proceeded thereafter against the Butte Electric & Power Company and George T. Aiken.

The complaint alleges that the defendants were engaged in the business of furnishing light by electricity to the citizens of Butte and Meaderville, in Silver Bow county. Paragraph 5 of the complaint is as follows: "That on or about the 1st day of May, 1902, near Meaderville, in the said county of Silver Bow, Mont., the said defendants did cause to be hanged, about three feet above and across a trestle at the East Colusa mine, a certain copper wire, and charged the same with, and continued at all times thereafter to keep the same charged with, a current of electricity of a voltage of about 2,500 volts, that being sufficient in power to kill men of ordinary vitality, and to do great bodily harm to all men, whenever they might touch the same; that the said wire, on the 10th day of May, 1902, and long prior thereto, was insufficiently, carelessly, and negligently insulated, and that the defendants were well aware of the said want of insulation, or could with reasonable diligence or care have been aware of such want of insulation." It is further alleged that the wire mentioned in paragraph 5 was hung by the defendants, or by them permitted to hang, over and across said trestle so low that persons working over the trestle were in imminent danger of coming in contact with the wire; and that the wire was so low that it had to be moved and lifted up by persons working on the trestle. It is further alleged that this trestle belonged to the Boston & Montana Company, and that on the 10th day of May, 1902, this plaintiff, while in the employ of that company, was there lawfully hauling waste in tram cars along and over this trestle. Paragraph 7 of the complaint is as follows: "That the defendants, when they hung the said wire over the said trestle, and only about three feet above the said trestle, and without insulation as aforesaid, well knew that this plaintiff, and many other men employed by the said mining company, were daily employed in walking over the said trestle and must in the course of such employment touch the said wire." It is further alleged that, in order for plaintiff to get his cars back and forth along the track on this trestle, it was necessary for him to lift up said wire every time he passed, and that the defendants knew that it was necessary for him to do so, and that plaintiff did not know that this wire was in any manner charged with an electric current. It is alleged that the placing of this wire over the trestle so low, and the placing of it there without proper insulation, constituted acts of gross negligence and malicious recklessness on the part of the defendant company. It is further alleged that on the 10th day of May, 1902, it was raining; that the trestle was wet, and that, as plaintiff was pursuing his business and passing back and forth with his car, in attempting to lift the wire to let his car go by he touched the wire with his left hand; that the wire was then charged with electricity; that a current of electricity passed through him, caused him to hold on to the wire, burned all the flesh from the fingers and thumb of his hand, and otherwise caused him great pain and terrible anguish; that by reason of this injury he was confined to a hospital for 18 weeks under the care of a physician; that he suffered daily great bodily pain; that the injuries inflicted upon him are permanent; that before the accident he was a strong and healthy man, capable of earning, and did earn, $3.50 a day; that by reason of this accident he will never be a strong man again; that he cannot open his left hand, because of the fact that the muscles on the inside thereof were burned off; that the muscles of his legs and arms have become shrunken; that he continues to suffer pains throughout his body; that he is informed and believes that he will never be relieved of these; that by reason of the burning he has been rendered so weak that he cannot eat anything but soft food; that at the time of the burning he was about 45 years of age; that since that time he has not been able to do any work or earn any money; and that he will never again be able to do any work, by reason of such injury. It is further alleged that the acts of the defendants, as set forth, were done maliciously and wantonly, and in criminal disregard of the rights and safety of all persons, and particularly of this plaintiff. Actual damages in the sum of $30,000 are asked, and punitive damages in the sum of $20,000 in addition thereto.

The answer denies that either or any of the defendants, except the Butte Electric & Power Company, was engaged in the business of furnishing light by electricity to the citizens of Butte and Meaderville, as charged in the complaint. There are specific denials that the wire mentioned in the complaint, strung over the trestle, was insufficiently or carelessly insulated, or that it was ever necessary for the plaintiff to lift the wire in hauling his car over the trestle, or that the plaintiff did not know that the wire was charged with an electric current. There is a denial of any knowledge or information sufficient to form a belief as to whether or not the plaintiff was injured, or the extent or character of his injuries. There is a further denial that, because of any act or thing done by the defendants, or either of them, the plaintiff was injured in any manner or at all. There is also a denial that any of the acts alleged in the complaint as having been performed by the defendants, or either of them, were done or performed maliciously or wantonly, or in criminal disregard, or any disregard, of the right of plaintiff or any person. The answer also contains allegations to the effect that over the trestle were strung two wires, one a primary wire, 6 5/6 feet above the trestle, and a secondary wire, 4 1/2 feet above the trestle; and it is alleged that the accident to the plaintiff was occasioned by the plaintiff taking hold of said primary wire and said secondary wire at one and the same time. It is alleged that it was not necessary for the plaintiff to take hold of either of these wires, and that his taking hold of either of them, or both at the same time, were acts of negligence on his part, which contributed to the injury which he received. With relation to the principal allegations of the complaint in paragraph 5, set forth in full above, the denials in the answer are so pregnant with admissions that they are set forth at length, as follows: "Deny that on or about the 1st day of May, 1902, or at any other time, near Meaderville, in said county of Silver Bow, or elsewhere, any of said defendants above named, save and except the Butte Electrict & Power Company, did cause to be hanged three feet, or any number of feet, above or across a certain trestle at the East Colusa mine, or elsewhere, a certain copper wire, or charged the same with, or continued at any time thereafter to keep the same charged with a current of electricity of a voltage of about 2,500 volts, or any number of volts, or at all, or that any wire hanged by said defendants, or by either of them, save and except the Butte Electric & Power Company, was sufficient in power to kill men of ordinary vitality, or to do gross or any bodily harm to all men, or any men, whenever they might touch the same, or otherwise, or at all. Deny that said defendants, or either of them, ever, at any time, strung or hanged said wire mentioned in said complaint, or any wire, or at all, over said or any trestle, only three feet, or about three feet, above said trestle; but in this connection and as a part of this denial, defendants allege that a certain wire strung by the Butte Electric & Power Company was so strung over and above said trestle a distance of 4 1/2 feet from said trestle, and called a secondary wire." There is not any denial whatever of the allegations of paragraph 7 set forth above.

The cause was transferred to Lewis and Clarke county, where it was tried to the court sitting with a jury. The jury returnde a verdict in favor of the plaintiff, and judgment was entered thereon. The appeals are from the judgment, and from an order denying defendants' motion for a new trial.

J. L. Wines, Forbis & Matteson, and M. J. Cavanaugh, for appellants.

Robt. B. Smith, H. L. Maury, and John B. Clayberg, for respondent.

HOLLOWAY J.

1. The cause was apparently tried upon the theory that there was an issue raised by the pleadings as to whether the wire which caused the injury to plaintiff was placed in position before the trestle upon which plaintiff was at work was erected. The most casual reading of the pleadings will show at once that there was not any issue upon this question at all. The complaint in paragraph 5 above, in plain and unmistakable language, charges that the defendants, on or about the 1st day of May, 1902, hung this wire, charged with an electrict current of 2,500...