Carroll v. Grande Ronde Electric Co.

• Citation: 47 Or. 424,84 P. 389
• Parties: CARROLL v. GRANDE RONDE ELECTRIC CO.
• Decision Date: 02 January 1906
• Court: Oregon Supreme Court

84 P. 389

47 Or. 424

CARROLL v. GRANDE RONDE ELECTRIC CO.

Supreme Court of Oregon

January 2, 1906

On Rehearing, February 27, 1906

Appeal from Circuit court, Union county; Robert Eakin, Judge.

Action by Eliza Carroll, as administratrix of the estate of Leonard Carroll, deceased, against the Grande Ronde Electric Company. From a judgment in favor of defendant, plaintiff appeals. Affirmed on rehearing.

This is an action by Eliza Carroll, as administratrix of the estate of her son Leonard Carroll, deceased, against the Grande Ronde Electric Company, a private corporation, to recover damages resulting from his death, which is alleged to have been caused by its negligence in constructing lines of electric wires and in failing to repair such wires when broken. The answer denies the material averments of the complaint, and, for a further defense, alleges that Carroll's death ensued from his own carelessness. The allegations of new matter in the answer were put in issue by the reply, and at the trial, the plaintiff having introduced her testimony and rested, the court, on motion of defendant's counsel, gave a judgment of nonsuit, and she appeals.

Leroy Lomax and Gustave Anderson, for appellant.

T.H. Crawford, for respondent.

MOORE, J. (after stating the facts).

The bill of exceptions shows that the defendant operates at Cove a power plant, where it generates electricity, which is transmitted on overhead wires 17 miles westerly to La Grande at a pressure of 23,500 volts, and by a branch from the main line, starting at a point about 5 miles from Cove, is carried a current at the same voltage southerly 8 miles to Hot Lake and supplied from substations at both termini to customers who use it for light, heat, or power. The injury complained of occurred on the branch line where it runs south on the west side of a public highway extending through the farm of Frank Hempe. This line consists of three uninsulated wires one of which is suspended from the tops of poles about 30 feet high, set about 125 feet apart, and the other wires are attached, each to the end of cross-arms fastened to such poles near the top. A very severe wind arising, Sunday August 27, 1905, at about 4 o'clock in the afternoon blew a green limb from a tree growing on Hempe's land across the wires, [47 Or.

429] causing two of them to burn off and fall, so that the ends thereof, in the direction from whence the current came lodged, one against the pole by which it was suspended, and the other on the ground, where it emitted sparks, setting fire to dry leaves; and, some cattle being near, John W Minnick, who with his employés was threshing grain for Hempe, apprehending danger, by using a dry stick, looped the wire over the end of a picket in a fence inclosing a lawn about Hempe's house, pushing the noose down against the upper rail of the palings. The loop placed over the picket not appearing to be securely fastened, Minnick bent the wire more, still using the dry stick for that purpose, and, wondering whether it still possessed electrical energy, he put out his finger, and when it came within about 8 inches of the wire a blaze suddenly appeared, burning his hand and causing him to fall insensible, from the effects of which shock he did not fully recover for several days. Minnick's son, seeing his father fall, immediately ran to his assistance, when, coming in contact with the wire that was lodged against the pole, he also received a shock. Soon after the wires fell, a dog chasing cattle away from the place of danger also came in contact with the electric current. When the end of the wire was fastened to the fence, Hempe's son George was present and knew that the several shocks were so received. Leonard Carroll, who was 24 years old, was working in August, 1905, for Hempe as a farm laborer. He was not at the home of his employer, however, when the wires fell; but, returning that evening, he ate supper with the family and also breakfast the next morning, at which meals the dangerous condition of the wires was freely commented upon, the several shocks received therefrom were adverted to, and at breakfast Hempe, in his hearing, warned the persons participating in the repast to keep away from the broken wires, as by approaching them they might be killed. Carroll assisted that forenoon in hauling oats from Hempe's field to Minnick's machine to be threshed. About 12 o'clock that day, as George Hempe, who was nearly Carroll's age, was returning to the house for the midday meal, he concluded to ascertain whether or not the broken wires, which had not been repaired, were still charged with electricity, and going inside the inclosure to the place where the end of the wire towards the power house was fastened to the picket fence, he expected to make a test with a green weed suspended from a dry stick. Carroll went with him, and, standing at his left about two feet north of the point where the end of the wire was fastened, he seized the top of one of the fence pickets with his left hand, and, in his ignorance of electricity, pointed his index finger toward the wire, which was about 8 inches distant, when there was a sudden flash, burning his hand and killing him.

George Hempe, as plaintiff's witness, testified that he was present when the wires were fastened to the fence, but his back was turned when Minnick received the shock, though hearing him holloa, the witness turned as he fell; and that on the morning of August 28, 1905, he discussed with Carroll the danger of the broken wires. On cross-examination George stated that he told Carroll about Minnick's getting shocked and knocked down, whereupon defendant's counsel, referring thereto, inquired: "Did you tell him he put his hand up towards the wire and there was a blaze came out to him, and that is the way he got it?" To which the witness replied: "Yes; I think I told him something to that effect." Referring to the manner in which Carroll was injured, the witness was further asked on cross-examination: "Isn't it a fact that he went up and took hold of the picket there and stuck his finger out in that way?" And he answered: "Well, when he took hold of the picket, he reached out and took hold of it like that, and these three fingers closed while the other extended. Q. Extended out towards the wire? A. Yes. *** Q. Well, now, did his hand come in contact with the wire? A. I don't think it did. The last time I saw it before the blaze started, it was probably about eight inches from the wire, and after the blaze started I could not say. *** Q. As a matter of fact, from where he took hold of that picket here, his finger--his forefinger of his left hand--was pointed directly towards the wire, wasn't it? A. Yes." Frank Hempe, as plaintiff's witness, testified that he was not at home when the wires burned off, but that he returned that night about 8 o'clock. In referring to the broken wires at that hour, plaintiff's counsel inquired: "What did you see about that?" And the witness answered: "Well, they were sparking and I cautioned the people that they were dangerous and to keep away from those wires. *** Q. You saw the wires? A. I didn't see any wire. I saw the fire and sparks. I didn't see any wire. I thought it was dangerous." On cross-examination, defendant's counsel, referring to Monday, August 28, 1905, inquired: "I will ask you to state whether or not, at the breakfast table that morning, when Mr. Leonard Carroll was present and your son George, that you said to all of those parties to stay away from that wire; that it was extremely dangerous, and they might get killed?" To which he replied: "Yes." Mrs. Frank Hempe, as plaintiff's witness, testified, on cross-examination, that Leonard Carroll took supper with her family Sunday evening, August 27, 1905, when the breaking of the wires was discussed; that at the breakfast the next morning, when Carroll was present, the broken wires were again the subject of debate, and attention was called to Minnick's being knocked down; that she heard her husband say, at that meal, in the presence of Carroll, and of her son George, to stay away from the wires, for if they went about them they were liable to be killed. This witness, referring to what was further observed on that occasion, testified as follows: "I said the best thing to do was to keep away from that wire. Q. Mr. Leonard Carroll was there at that time? A. Yes. Q. Was that at the breakfast table or the supper table? A. Breakfast table. Q. Well, these matters were talked--were made a matter of general conversation--were they not, between the parties at the supper table and breakfast table? A. Yes. Q. And to what extent Mr. Minnick had got hurt? A. Yes. Q. And that it was fortunate that he didn't get killed and matters of that kind? A. Yes. Q. And it was discussed how dangerous it would be if a person happened to get near the wire, if it happened to be charged with electricity? That was all talked, wasn't it, Mrs. Hempe? A. Yes."

Though no testimony was introduced on the part of the defendant, the answer states facts which were evidently relied upon to excuse the delay in failing to discover the break in the wires, so that it might sooner have been repaired. That pleading details the manner in which the defendant's station, substations, and transmission lines are constructed maintained, and operated, and avers that the power plant, at the time of the wind storm adverted to, was supplied with the latest and best improved electrical devices for promptly detecting any grounding of the wires. That at the time the wires were burned off at Hempe's farm a tree fell upon the main line at a point about four miles east of La Grande, breaking the wires, the grounding of which simultaneously at each place was immediately indicated at the...