Boyd v. Portland General Elec. Co.

• Decision Date: 03 May 1902
• Citation: 41 Or. 336,68 P. 810
• Parties: BOYD v. PORTLAND GEN. ELECTRIC CO. [1]
• Court: Oregon Supreme Court

68 P. 810

41 Or. 336

BOYD v. PORTLAND GEN. ELECTRIC CO. ^[1]

Supreme Court of Oregon

May 3, 1902

Appeal from circuit court, Multnomah county; Arthur L. Frazier Judge.

Action by William Everett Boyd, a minor by R.B. Boyd, his guardian against the Portland General Electric Company. from a judgment for plaintiff, defendant appeals. Affirmed.

This is an action for damages by a minor through his father as guardian, predicated upon the same facts as Boyd v. Electric Co. (Or.) reported in 66 P. 576, that being an action by the father on account of the same injury complained of here. The pleadings in the two cases differing somewhat, we will adopt the statement of the latter cause, withsuch modifications as are necessary to show the state of the pleadings in this "The defendant is a corporation engaged in supplying the city of Portland and its inhabitants with electric light, for which purpose it has put up poles along the streets, having cross arms near the top, upon which its wires are stretched. The day before the accident, and while a storm was prevailing, two of the wires on Magnolia street became crossed at a point some 125 feet west of Dakota street, and about 6 or 7 o'clock in the evening the smaller one burned in two, and hung down in two loops east of the break one of them nearly reaching the ground 2 or 3 feet west of the pole at the intersection of the streets, where it swung directly over a path used by residents of the neighborhood. The other end remained suspended from the next pole, some 150 feet west, and did not reach the ground. About the time, or soon after, the wire parted, the boy who was subsequently injured, a lad about 11 years of age, and an elder brother, passed the pole west of Dakota street, noticed the broken wire at that place, and knew it was dangerous, but did not know anything about the other wire hanging down east of that point at the intersection of the streets. About 8 o'clock next morning, the father, who resided on Dakota street some 200 feet south of its junction with Magnolia, sent his son on an errand which required him to travel along the path near the light pole at the corner of the street over which the wire was suspended. A few minutes later the boy was discovered lying on the ground, immediately under the broken wire, in an insensible condition, his right hand badly burned, while he was otherwise seriously, and perhaps permanently, injured. No one witnessed the accident, and the lad was unable to give any account of how it occurred, but says that he passed out of the front gate, and ran north along Dakota street without looking up, after which he had no recollection of what occurred. It is admitted, however, that his injury was caused by contact with the broken wire." After setting forth in his complaint that defendant had constructed and was maintaining an electric light system upon certain streets of the city of Portland, plaintiff charges defendant with negligence, in that one of its wires suspended along and across said streets was frail, weak, and otherwise defective, and when heavily charged with electricity was at all times unsafe and insufficient, and exceedingly so during the winds and storms often prevailing in that locality; that on the evening of December 6, 1897, said frail, weak, and defective wire broke, and in breaking swung over and against another wire, heavily charged with electricity, which defendant had carelessly and negligently strung and suspended near to and alongside of it, and said broken wire hung down close to the ground, and swung and was swayed by the wind over and across said streets; that strong winds were prevailing at the time, and said weak and defective wire, long before it broke, plainly showed weakness and defects in general, and especially by flashes of electricity frequently emitted therefrom, all of which defendant, its agents and employés, could, by proper diligence, have known and did know; that defendant, its agents and employés could, by proper diligence, have known, and did know very soon after said wire was broken, and long before the injuries complained of were received, that it was so broken and suspended in the street, but that they carelessly and negligently failed and neglected to remove or repair the same, or to give warning of the danger, and allowed it to hang down and against said live wire, heavily charged with electricity, and while in said condition to swing and be swayed by the wind over and across the street so near to the ground as to endanger the lives of persons traveling thereon. The answer denies the negligence charged, and alleges that in the vicinity of the fracture the company had put in place wires for both arc and incandescent lights; that the arc light wires were much larger and carried a greater voltage than the incandescent wires; that they were strung about a foot apart; that the wires used were of the best and most improved quality, and such as are in general use for lighting purposes; that they were sound and in all respects properly insulated, and entirely sufficient for the use to which they were applied; that they were properly strung, fastened, and supported, and were in all respects as safe and secure as proper foresight would suggest, but by some means, and for some cause unknown to the defendant, one of the incandescent wires burned off and parted, and that a portion of it formed in loops and hung suspended from an arc wire within two or three feet of the ground, but not touching it; that the company was provided with the best approved appliances for detecting the grounding of its wires, but that, owing to the fact that no short current was formed, the fracture was not indicated. Contributory negligence on the part of the plaintiff is also pleaded and relied upon as a defense. The verdict and judgment being for plaintiff at the trial, defendant appeals.

J.M. Gearin, for appellant.

E.B. Dufur, for respondent.

WOLVERTON, J. (after stating the facts).

The plaintiff produced two witnesses, who testified that between 6 and 7 o'clock in the evening of the day before the accident occurred they saw flashes of light running along and coming from the wires between the poles where the fracture took place, and that it terminated in an electric explosion like a roman candle, emitting sparks in all directions, and with this the phenomenon ceased. Another witness saw flashes of light about 9 o'clock the same evening at the pole where one end of the wire hung suspended, being 150 feet distant from where the accident occurred. It was further shown that the wind was blowing during the evening from 4 to 5 o'clock, at a velocity of 40 miles an hour; from 5 to 6, 38; from 6 to 7, 30; and from 7 to 8, 21; and from 8 to 9, 29 miles,--which was not unusual or extraordinary. Further evidence was given showing the injury by contact with the suspended wire, and the condition in which it was found, and with this the plaintiff rested, and the defendant moved for a nonsuit, but without avail. It thereon gave evidence tending to show that the wire that parted was purchased from a reputable manufacturer, was first-class in every particular, and suitable for the purpose for which it was used; that all the wires were securely fastened, and the manner of construction was such as was in common use and according to the most approved methods; that the company maintained at its operating station a ground detector of the most approved kind, kept strict watch, and consulted it at proper intervals, but was unable thereby to discover the fracture, and was not aware of it until a report came in between 9 and 10 o'clock the next morning, when immediate steps were taken to repair it. The trial court, after analyzing the complaint, and indicating the issues tendered by the answer and reply, further stated to the jury "that the whole case turned upon the question of negligence,--negligence on the part of the defendant as claimed by the plaintiff, and negligence on the part of the plaintiff as claimed and alleged by the defendant"; and after defining the term "negligence," and the duties and responsibilities of the defendant, gave the following instruction, among others: "In cases of this kind, gentlemen of the jury, for reasons which I need not here discuss, the law provides that where it is shown that an accident of this kind has happened, and that the accident is caused by the breaking of a wire or by something going wrong in the business of a corporation engaged, as this one was, in supplying electric lights, and it is further shown that this wire which broke and which caused the accident was the property of and in the custody and control of the defendant, the law presumes then, or raises the presumption, that the defendant was negligent, and that the accident was caused by its negligence; and if there is no further testimony in the case, excepting the testimony tending to show the mere fact of the breaking of the wire, that the injury resulted from that breaking, and that the wire belonged to this defendant and was within its custody and control, then it would be your duty to find for the plaintiff; and, when that is shown,--I should say, provided that there was no contributory negligence shown on the part of the plaintiff,--the burden is shifted to the defendant to show to your minds by a preponderance of evidence that it was not at fault, and that the accident happened without any negligence or want of ordinary care upon its part."

The defendant's initial contention, and the one most strenuously insisted upon, is that the plaintiff should have been confined in his proofs to the allegations of negligence contained in his complaint, and upon which he relied for recovery as thereby indicated, but that instead the instruction of the...