Calkins v. Wyoming Coal Mining Co.

• Decision Date: 18 March 1918
• Docket Number: 903
• Citation: 25 Wyo. 409,171 P. 265
• Parties: CALKINS v. WYOMING COAL MINING CO., ET AL
• Court: Wyoming Supreme Court

171 P. 265

25 Wyo. 409

CALKINS v. WYOMING COAL MINING CO., ET AL

No. 903

Supreme Court of Wyoming

March 18, 1918

ERROR to District Court, Sheridan County; HON. C. H. PARMELEE Judge.

Action by Edward G. Calkins, administrator of the estate of Myron Chamberlain, deceased, against the Wyoming Coal Mining Company, a corporation, and the Sheridan County Electric Company, a corporation. There was a judgment for defendants on a directed verdict, and plaintiff brings error.

Affirmed.

Fred H Free and Fred H. Blume, for plaintiff in error.

The court erred in directing the verdict for defendants, as there was evidence as to the negligence of the Coal Company. It maintained a defective and dangerous installation of high tension wires and neglected to inform deceased of the danger. (Joyce on Electric Law (2nd Ed.), Vol. 2, pp. 1065, 1066.) An employee is in many cases relieved of a charge of contributory negligence where he acts under the immediate control of his superior. (Joyce on Electric Law, Vol. 2, p 1071; Smith v. Electric Ry. & L. Co., 106 N.W. 829; Knowlton v. Des Moines &c. Co., 117 Ia. 451, 90 N.W. 818.) It is the duty of an employer to instruct unskilled servants as to new duties. (Thompson on Negligence, Vol. 4, pp. 313, 314; Galveston Ry. v. Hughes, et ux., 22 Tex. Civ. App. 134, 54 S.W. 264.) A question of contributory negligence should not be taken from the jury unless the acts are so palpably negligent that there can be no two opinions concerning them. (Burian v. Seattle Electric Co., 28 Wash. 806, 67 P. 214.) Courts are not inclined to construe too strictly the acts of an employee in the performance of the duties. (Gremnis' Admr. v. Electric Light Co., 20 Ky. 1293, 49 S.W. 184; Southern Ry. v. Stutts, 144 F. 948, 75 C. C. A. 588; Smith v. Milwaukee Electric Co., 106 N.W. 829.) The presumption is that decedent was in the performance of his duties and used due care at the time of his death. (Staab v. R. M. B. T. Co., 129 P. 1078; Adams v. Bunkerhill &c. Co., 12 Idaho 648, 89 P. 634, 11 L. R. A. N. S. 844, and cases there cited.) The test to be applied to men of the capacity and situation of deceased is discussed in Mackay v. New York Central Ry. Co., 35 N.Y. 75. Instructions given in Giraudi v. Electric Improvement Co., 107 Cal. 120, 40 P. 108, 48 A. S. R. 114, 28 L. R. A. 596, were approved, and were to the effect that reasonable care must be adjudged by the circumstances of the case and an employee ignorant of the danger that might result from contact with wires is charged with a less degree of care than would have been required if he had been informed of the danger.

Charles A. Kutcher and D. P. B. Marshall, for defendants in error.

No liability whatever is shown as to the Light Company. The alleged negligence of the Coal Company was not established by the evidence. Insulation of electric wires is not required at places where servants are not required or expected to go. (9 R. C. L. 1213; Curtis on El. 510, 511.) Decedent knew of the danger. His work did not require him to handle or go near the switch appliances. The company could not have foreseen that he would commit such a reckless act as to climb among such wires, or need instruction or warning with respect thereto. The employer is not required to warn a servant against acts so careless as to be almost suicidal. (26 Cyc. 1169; Thompson on Negligence, Vol. 4, Sec. 4063.) The testimony of witness Pollock was incompetent, it being a mere narration of a past transaction. (Mechem on Agency, Sec. 714.) Where the evidence produced by the plaintiff shows no liability exists against the defendant, the defendant may avail himself of such proof and invoke the law arising upon the facts so proven. (C. B. & Q. Ry. Co. v. Cook, 18 Wyo. 43.) A servant encountering dangers which by the exercise of reasonable care could be avoided is guilty of contributory negligence. (Thompson on Negligence, Vol. 5, Sec. 5345. See also Sec. 5437; 26 Cyc. 1088; Bailey on Personal Injuries, Vol. 3, Sec. 749; Sweezo v. Cheboygan Elec. L. & P. Co., 131 N.W. 125; Hickok v. Auburn &c. Power Company, 93 N.E. 1113; Mellon v. Mfg. Co., 150 Mass. 362, 23 N.E. 100.) That the accident might have been foreseen by defendant as the natural and probable result of its act or omission is of the very essence of negligence. (Thompson on Negligence, Vol. 1, Sec. 28.) The cross-examination of witness Pollock did not exceed the scope of proper cross-examination. (48 Cyc. 2506; Thompson on Trials, Sec. 435.) The verdict was properly directed and should be confirmed.

Fred H. Free and Fred H. Blume, in reply.

A death trap was maintained by these defendants of which they had full knowledge. Deceased was advised that there would be no current upon the high tension wires. Had he been a competent electrician, he would have been justified in believing that the superintendent knew whereof he was speaking and that the high tension wires would be harmless. (Smith v. Milwaukee E. R. & L. Co., 106 N.W. 829; Knowlton v. Des Moines &c. Co., 117 Iowa 451, 90 N.W. 818.) The evidence showed that after deceased had been informed that the current had been shut off, it was turned on again before the accident. Deceased did not assume unusual or extraordinary risks. (Zentner v. Oskash Gas Light Company, 105 N.W. 911.) The testimony of Pollock did not refer to a past transaction. (J. I. Case Plow Works v. Pulsifer, 98 P. 787.) Pollock was general manager and Wertman head electrician. The admission of the superintendent to his immediate inferior was made with no knowledge of the death of Chamberlain. The statements were clearly admissible. (Bank v. Timmons, 84 S.E. 232; Snyder v. Frank, 101 N.E. 684.) The rule is stated in Henderson v. Coleman, 115 P. 439. The court usurped the functions of the jury. (Zentner v. Oskosh, supra.)

BEARD, JUSTICE. POTTER, C. J., and BLYDENBURGH, J., concur.

OPINION

BEARD, JUSTICE.

The plaintiff in error brought an action against the defendants in error to recover damages for the death of Myron Chamberlain, alleged to have been caused by the negligence of defendants. At the close of plaintiff's evidence the court granted the motions of each of the defendants for a directed verdict. The court thereupon instructed the jury to return a verdict in favor of each of the defendants, which was done, and judgment was entered accordingly. Plaintiff brings error.

The defendant, Sheridan County Electric Company, was engaged in the business of generating, selling and distributing electricity for lights and power, and at the time of the accident complained of was furnishing electricity over its wires to defendant, The Wyoming Coal Mining Company, at a certain sub-station owned and operated by the Coal Company. At the time Chamberlain met with death he was, and for some time prior thereto had been, in the employ of the Coal Company as a laborer caring for said substation and the machinery and appliances therein, which machinery and appliances consisted of certain wires, insulators transformers, converters, switches, etc. Plaintiff alleged in substance in his petition that said sub-station was defectively constructed and maintained in that the building was constructed of sheet iron and that the line wires entering the building and connecting with certain switches were placed not more than fourteen inches from a certain iron pipe in the building forming a "ground." That said wires carried, when in operation, 23,000 volts of electricity and were not insulated. That said switches were about nine feet from the floor of the building and were operated with wooden sticks in turning on and off the current at the substation. That deceased was about fifty-six years of age, did not know of said defects and was ignorant of the dangers connected with handling said electric current and had not been warned of the danger by defendants. That on the day of the accident the Coal...