Bristol Gas & Elec. Co. v. Boy

• Decision Date: 05 November 1919
• Docket Number: 3307.,3299
• Citation: 261 F. 297
• Parties: BRISTOL GAS & ELECTRIC CO. v. BOY. BOY v. BRISTOL GAS & ELECTRIC CO.
• Court: U.S. Court of Appeals — Sixth Circuit

261 F. 297

BRISTOL GAS & ELECTRIC CO. v. BOY.

BOY v. BRISTOL GAS & ELECTRIC CO.

Nos. 3299, 3307.

United States Court of Appeals, Sixth Circuit.

November 5, 1919

Robert Burrow, of Bristol, Tenn., for plaintiff.

C. J St. John, of Bristol, Tenn., for defendant.

Before KNAPPEN and DENISON, Circuit Judges, and McCALL, District judge.

KNAPPEN Circuit Judge.

The administrator sued the Electric Company for injuries resulting in the death of his decedent, caused by alleged negligence of the Electric Company in failing to keep properly insulated its high-tension power wires. There was trial by jury, and verdict for $10,000. Defendant's motion for new trial was denied, on condition that plaintiff remit $5,000 from the verdict. The remittitur was made under protest. Under the writ in No. 3299, the defendant complains of the judgment against it. In No. 3307, the administrator complains that he was required to remit.

The theory on which plaintiff recovered is that decedent, then 7 years of age, while passing along the sidewalk of a public street in Bristol, touched or seized a piece of telephone wire, suspended from a tree, overhanging and terminating within three feet of the sidewalk, the telephone wire being charged with electricity through contact with defendant's wire at a place where the insulation was worn off or was defective, whereby decedent was either killed directly by the shock or, as the result thereof, by being thrown so violently to the sidewalk that he was killed by the breaking of his neck. Defendant assigns several alleged errors.

1. The trial judge refused defendant's request, at the close of the evidence for peremptory instruction of verdict in its favor, on the ground that there was no substantial evidence to sustain a recovery. We think the request for directed verdict was properly denied. In considering this question we of course, take the view of the evidence most favorable to plaintiff. Erie R.R. Co. v. Weber (C.C.A. 6) 207 F 295, 125 C.C.A. 37. There was direct testimony on the part of a small boy tending to show that deceased, while running along on the sidewalk, seized the hanging telephone wire and immediately fell to the ground. The criticisms of this boy's testimony, on account of his youth and alleged contradictory statements, were for the jury's consideration. There was also testimony otherwise that deceased, after uttering a cry, was seen apparently on his knees and then to fall over. He was practically dead when picked up. There was also testimony tending to show that the telephone wire had been hanging in the tree, and near defendant's electric wires, for about four weeks; that the insulation on defendant's wires was worn off in two or more places in the vicinity of the accident, probably caused by their contact with the branches of the tree, especially during wind, the insulation being in one place worn bare for a space of about four feet; that the leaves on the tree in the vicinity of both the telephone wire and defendant's wire were killed, as if by burning; that for several days before the accident more or less sparking was seen along defendant's wire and the hanging telephone wire; that defendant's wires in question had been in the same location 15 or 20 years without renewal; that immediately following the accident the telephone wire was found crossing defendant's electric wire at a point midway between two uninsulated portions of wire, and at a distance of about two feet from the large bare place.

The record would support an inference of negligence in failing to discover and remedy the condition in question. In the briefs here there is no contention to the contrary. The fact that the telephone wire carried no current, except as it came in contact with an uninsulated portion of defendant's electric wire, and that it was not found in contact with the uninsulated spot immediately following the accident, does not necessarily prove that it was not in such contact when seized by the deceased, as a loosely hanging wire would naturally change its position from time to time, especially when seized or touched. The boy's neck was found to be broken, presumably from the fall; but defendant would be liable for the effect of a fall caused by an electric shock, even though not sufficient in itself to cause death. There was testimony on the part of physicians and others that the boy's hand did not show signs of being burned by the wire, opposed to which was testimony having a tendency to the contrary. There was also evidence of a lack of other symptoms normally to be found in case of death by electrocution, also that the telephone wire did not show such a burn as would naturally be caused by contact with defendant's highly charged wire; but such testimony did not necessarily overcome the theory that the child had received shock enough to cause him to fall, although not strong enough to have electrocuted him.

The case was submitted to the jury in a careful charge. In denying motion for new trial the court held that the verdict was not 'so clearly and manifestly against the evidence or weight of the evidence' as to justify setting it aside. While there was such conflict in the testimony as to support a verdict for either party, we think the case peculiarly one for a jury (Rochford v. Pennsylvania Co. (C.C.A. 6) 174 F. 81, 98 C.C.A. 105), and that there was substantial evidence to support the verdict. We cannot review the exercise of discretion by the court below in refusing a new trial. Robinson v. Van Hooser (C.C.A. 6) 196 F. 620, 627, 116 C.C.A. 294.

2. The declaration states that the plaintiff administrator sued 'for the use and benefit of father and mother of his intestate, who survive him. ' In fact, the father would be the sole beneficiary. Shannon's Tennessee Code, Sec. 4172(4). We see no merit in the criticism of the court's failure to instruct that the recovery would be for the father alone. Not only does the record fail to show any request to so charge, or any exception which can be identified as aimed at that proposition, but all possibility of error is negatived by the fact that the recovery would be the same, regardless of beneficiary, and the instruction limiting recovery to the present value of what the deceased would have earned during the remainder of his life, plus compensation for his suffering-- the court commenting on an absence of proof 'that the boy was conscious of suffering at all. ' The suggestion that the recovery may have been increased by sympathy for the mother is too intangible to be considered. No recovery could be had for the suffering and anguish of either parent. Freeman v. Railroad, 107 Tenn. 340, 348, 64 S.W. 1. There is nothing to indicate that the jury even knew who the beneficiary was. The form of the verdict considered in connection with the charge of the court, negatives the inclusion of punitive damages.

3. Testimony as to condition of wires:

(a) The accident occurred on Eleventh street. A witness, Kiebel, who lived on Anderson street, the second lot west of Eleventh street, after testifying that he had noticed after the accident (presumably immediately) dead leaves in the trees around the electric wires in question, that the insulation had worn off the inside wire to a great extent, and that the outside wire had some patches of insulation off, was permitted to testify that--

'The insulation was off a large per

...