Bristol Telephone Co. v. Weaver

• Decision Date: 08 December 1921
• Citation: 243 S.W. 299
• Parties: BRISTOL TELEPHONE CO. et al. v. WEAVER.
• Court: Tennessee Supreme Court

Page 299

243 S.W. 299

BRISTOL TELEPHONE CO. et al. v. WEAVER.

Supreme Court of Tennessee.

December 8, 1921.

Certiorari to Court of Civil Appeals.

Action by Lula B. Weaver, administratrix, against the Bristol Telephone Company and the Bristol Gas & Electric Company. Judgment for plaintiff against defendant Gas & Electric Company, and it appealed to the Court of Civil Appeals, which affirmed the judgment, and defendant petitions for certiorari. Reversed and remanded for a new trial.

St. John & Gore, of Bristol, and Maynard & Lee, of Knoxville, for Bristol Telephone Co. and another.

Robert Burrow and J. D. Baumgardner, both of Bristol, for Weaver, Adm'x.

HALL, J.

An action of damages instituted jointly in the law court at Bristol, by Lula B. Weaver, administratrix of Edward E. Goodwin, deceased, against Bristol Telephone Company and Bristol Gas & Electric Company (both private corporations), to recover for the alleged negligent killing of plaintiff's intestate, Edward E. Goodwin, on February 7, 1920.

Plaintiff's intestate, at the time he was killed, was in the employ of the Bristol Telephone Company as one of its linemen, and had been so engaged for some four or five months previous to his death. The accident which caused his death, occurred on Holston avenue, in the city of Bristol, Tenn., on February 7, 1920; but whether it occurred inside or outside of the corporate limits of said city does not appear. The evidence shows that he and another employee of the telephone company were engaged in installing a telephone in the residence of a Mr. Sparger on the west side of Holston avenue. It appears from the evidence that on Holston avenue the wires of the Telephone Company were strung on poles along the east side of said avenue, and that the wires of the Bristol Gas & Electric Company, which was engaged in furnishing electric current to the city of Bristol and its inhabitants, were strung on poles along the west side of said avenue; that the wires of the Bristol Gas & Electric Company were at all times, day and night, charged with deadly currents of electricity. Plaintiff's intestate had ascended one of the poles of the Telephone Company for the purpose of connecting a telephone wire to its line, one end of which had only a few moments before been connected to the house of Mr. Sparger on the opposite side of the street and pulled across the street under or beneath the high-powered wires of the Gas & Electric Company, which carried 2,300 volts of electricity.

Previous to the installation of this telephone in Mr. Sparger's residence there had been a telephone in his residence, but the same had been removed some time prior to the date of the accident in question by the Telephone Company. In removing this telephone from the Sparger residence the Telephone Company had left the old steel wire, which connected said telephone with its line on the opposite side of said avenue, in position — that is, with one end attached to the Sparger residence and the other end attached to an insulator on the third cross-arm of the pole which plaintiff's intestate had ascended for the purpose of attaching the new wire — it appearing that the old wire was rusty and unfit for use. Plaintiff's intestate had carried the unattached end of the new wire in one hand up the pole with him to the first cross-arm, and put one of his feet or legs over the second cross-arm, and was standing with his other foot resting on the first cross-arm. The old, abandoned wire then stood suspended a foot or two above the high-powered wires of the Gas & Electric Company. Plaintiff's intestate, in order to support himself and keep from falling, caught hold of the glass insulator around which the old, abandoned wire was wrapped with one hand, and in his other hand he held the new wire which he intended to connect with the line of the Telephone Company. He then began to pull the slack out of the new wire, the other end of which had been attached to the Sparger residence, as before stated, when the pole suddenly moved and leaned towards the street, causing the old wire, which was suspended a foot or two above the high-powered wires of the Gas & Electric Company, as before stated, to sag and come in contact with one of the Gas & Electric Company's high-powered wires at a place where the insulation was off of it; whereupon the old telephone wire became instantly charged with a heavy current of electricity, which was transmitted to the body of plaintiff's intestate, and he was killed.

In the first count of plaintiff's declaration it is alleged that the death of plaintiff's intestate was caused by the negligence of the Telephone Company in permitting one of its old, unused, and dead wires to remain attached to its pole and to the Sparger residence in such a way as to come in contact with the defectively insulated electric wire of the Gas & Electric Company, and on account of which negligence plaintiff's intestate received the current of electricity which caused his death. This count of the declaration further alleged that the unsafe condition of the old, unused, and dead telephone wire was unknown to plaintiff's intestate, but was known, or could have been known, to the Telephone Company if it had exercised reasonable and proper care.

In the second count plaintiff averred that her intestate's death was the result of the negligence and carelessness of the Gas & Electric Company in using and maintaining on one of the principal streets of the city of Bristol a high-powered wire from which the insulation had been removed or had fallen off, or was so defectively insulated as to offer no protection to plaintiff's intestate, who was in contact with the old, unused, and dead wire of the Telephone Company, which sagged and came in contact with said high-powered wire when the pole upon which plaintiff's intestate was sitting or standing moved or leaned towards the street; that the unsafe condition of this defectively insulated electric wire was unknown to plaintiff's intestate, but was known, or could have been known, to the Gas & Electric Company, if it had exercised reasonable and proper care.

The third count averred that the Gas & Electric Company was guilty of negligence in not having its electric wires well insulated in compliance with an ordinance of the city of Bristol, which was passed for the protection of human life, and which was then in force, and required that all wires strung, erected, or maintained by said company for the purpose of conducting electric current within the corporate limits of said city should be at all times well insulated.

The fourth count averred that the death of plaintiff's intestate was caused by the joint and concurrent negligence of both of said defendants in the manner and particulars set out in the first, second, and third counts of the declaration.

In the fifth count it was averred that both of the defendants were negligent in not warning plaintiff's intestate of the dangers incident to the situation described and set forth in the preceding counts of the declaration; all of said dangers being unknown to plaintiff's intestate, but were known, or could have been known, to defendants it they had exercised reasonable and proper care.

The defendant Telephone Company filed a plea in abatement to the plaintiff's suit, averring that it had regularly in its employ more than ten persons at the time of the accident which resulted in the death of plaintiff's intestate, and had fully and in all respects complied with chapter 123 of the acts of 1919, known as the Workmen's Compensation Act, and was operating under said act at the time plaintiff's intestate was killed; wherefore, it was entitled to have plaintiff's suit abated.

The plaintiff moved to strike the plea in abatement filed by the Telephone Company upon the ground that it presented an immaterial issue. This motion was overruled and said defendant's plea in abatement was finally sustained, and the suit was abated as to it.

The defendant Gas & Electric Company likewise filed a plea in abatement to the plaintiff's suit, averring that at the time plaintiff's intestate was killed he was an employee of the Telephone Company, and that both he and the Telephone Company had elected to operate and were operating under the Workmen's Compensation Act, and that plaintiff's intestate was killed while acting in the line of his employment; that said intestate's widow had agreed to accept, and intestate's employer had agreed to pay, the compensation provided by said act, and therefore the plaintiff's suit against the Gas & Electric Company could not be maintained.

This plea in abatement of the Gas & Electric Company was stricken upon motion of the plaintiff. Whereupon said defendant filed a demurrer to the plaintiff's declaration, which demurrer raised substantially the same question presented by said defendant's plea in abatement. Its demurrer was overruled by the court. Whereupon said defendant filed a plea of not guilty.

The case then proceeded to trial against the Gas & Electric Company alone before the court and a jury. At the conclusion of the plaintiff's evidence said defendant moved for a directed verdict in its favor. This motion was overruled, and was renewed at the conclusion of all the evidence, and was again overruled.

Upon the case being submitted to the jury, they returned a verdict in favor of the plaintiff and against the defendant Gas & Electric Company for $9,000. Its motion for a new trial was overruled, and, judgment being entered in accordance with the verdict of the jury, it appealed to the Court of Civil Appeals. That court affirmed the judgment of the trial court, and the case is now before this court upon said defendant's petition for the writ of certiorari and for review. By its first assignment of error defendant insists that the trial court erred in striking its plea in abatement filed to the plaintiff's action.

By its second assignment of error defendant...