Chaperon v. Portland General Elec. Co.

• Decision Date: 24 February 1902
• Citation: 67 P. 928,41 Or. 39
• Parties: CHAPERON v. PORTLAND GENERAL ELECTRIC CO. [1]
• Court: Oregon Supreme Court

67 P. 928

41 Or. 39

CHAPERON v. PORTLAND GENERAL ELECTRIC CO. ^[1]

Supreme Court of Oregon

February 24, 1902

Appeal from circuit court, Multnomah county; Alfred F. Sears, Judge.

Action by Phillip Chaperon against the Portland General Electric Company. Judgment for plaintiff, and defendant appeals. Affirmed.

This action was begun in a justice's court, and taken to the circuit court on appeal. The defendant is, and was at the time of the accident complained of, engaged in maintaining and conducting upon College and other public streets in the city of Portland a system of poles, and wires extended thereon, for the transmission of electricity; and for cause of action it is alleged "that on the 1st day of December, 1899, at about the hour of three o'clock a.m of said day, the plaintiff was, by and through his employé engaged in driving his horse and bakery wagon upon said College street, *** and that, without notice of or fault upon the part of plaintiff or his employé, the defendant corporation carelessly, unlawfully, and negligently allowed one of its wires, charged heavily with electricity, to become broken and hang down upon said College street, and that plaintiff, nor his employé, did not know that said wire was broken, or was hanging down upon said street; and that while said wire of defendant, charged with electricity, was so hanging upon and close to said College street, the horse and wagon belonging to plaintiff was being driven upon and along said street, and, without fault on the part of plaintiff or his employé, said broken and hanging wire, heavily charged with electricity, came into contact with and struck the horse belonging to plaintiff, and threw said horse to the ground seriously and permanently injuring said horse, and breaking the shaft of the bakery wagon, and tearing the harness upon the horse, to the damage of the plaintiff in the sum of $150," etc., which is followed by allegations of special damages. The sufficiency of the complaint was challenged during the trial by objections to the introduction of evidence, a motion for nonsuit, and by a request for an instruction to find in favor of the defendant.

Frederick V. Holman, for appellant.

D. Solis Cohen, for respondent.

WOLVERTON J. (after stating the facts).

We have recently held, after a careful review of the authorities that it is sufficient, in a declaration upon negligence, to specify the particular act, the commission or omission of which caused the injury, conjoining with it a general averment that it was negligently and carelessly done or omitted, and that it is unnecessary to go further and particularize or point out the specific facts going to establish the negligence relied upon. Cederson v. Navigation Co., 38 Or. 343, 62 P. 637, 63 P. 763. The proposition has been still more recently sanctioned in Boyd v. Electric Co. (Or.) 66 P. 576. To the same purpose, see Snyder v. Electrical Co. (W.Va.) 28 S.E. 733, 39 L.R.A. 499, 64 Am.St.Rep. 922. This results from the significance of the term "negligence," as applied to an act conducing to injury. It so qualifies the act as to render it actionable, and the allegation is treated as a statement of an ultimate fact, rather than a mere conclusion of law. But it is insisted that there is no pertinent allegation that the damage ensued from the negligence of the defendant, or, in other words (employing the language of the counsel), "it is not alleged that the wire coming in contact with and striking the horse was in any way due to appellant's negligence." The act of which plaintiff complained consisted in carelessly and negligently allowing and permitting a wire heavily charged with electricity to become broken and hang down upon a street where plaintiff's horse was being driven, and, without fault of the driver, was brought in contact therewith, whereby injury ensued. Now, to fill the measure of the contention, it was incumbent upon the plaintiff to go further, and affirm that defendant carelessly and negligently brought about or permitted the actual contact. This is the logic of the position, but it is fallacious in requiring a redundancy of allegation. The essential act of negligence is the primary one of allowing and permitting a wire charged with a subtle and dangerous energy to become broken and hang down upon a public street, where persons lawfully traveling were liable to come in contact with it. In the absence of any contributory act of negligence on the part of plaintiff in bringing about the contact, this becomes the proximate cause, and the injury is indisputably consequential, so that it becomes a matter wholly of supererogation to charge negligence in allowing and permitting the contact, and therefore was not essential to good pleading or the statement of a good cause of action.

There is evidence in the record tending to show that John Nagle, an employé of the plaintiff, was engaged in driving the horse attached to a wagon used for the delivery of bread from a bakery, and that just after turning a corner and entering upon College street the horse suddenly fell. Not being aware of the cause, the driver sprang to the ground, when he observed for the first time a wire hanging close to the wheel of his wagon, emitting sparks and flashes of light. At no time, however, did he see the wire come in contact with the horse. This occurred about 3 o'clock in the morning while it was yet dark The night had been stormy and cold, and the streets were wet. The driver went for assistance, leaving the horse where he fell, and it was three-quarters of an hour before he regained his feet. In the endeavor to liberate him, and while he was struggling to his feet, the wire was seen to come in contact with him, when he again fell, as described by one of the witnesses, "like he was shot." The witness further states that the wire was throwing off sparks, and at one time he approached so nearly to it as to receive a shock from the ground. The horse was trembling badly when liberated, and seemed to be in great agony. There was blood upon the ground, and he had a cut above his eye, and another on his foot. It was also shown that the wire parted and remained suspended for an hour prior to the accident. Plaintiff having rested, defendant moved for a nonsuit, but without avail, whereupon it produced evidence tending to show that the night was very stormy, the wind reaching a maximum velocity of 45 miles an hour, and an extreme velocity of 56 miles, which is not extraordinary; that the lines had been in use for seven years, but were of first-class material, and that the wire in question had parted about midway between poles standing 130 feet apart; that the insulation was not broken, except at the point of fracture; that it carried 1,000 volts, but where broken the voltage was much less, being estimated at from 300 to 500; that the wires and their fastenings, and the poles upon which they were carried, were regularly inspected as often as once every other day by a competent electrician; that the company was equipped with the standard and best approved ground detectors, or appliances for detecting or discovering breaks and the grounding of its wires, and that on stormy nights it applied the test every half hour; that upon this occasion the detector did not indicate the parting of the wire, and that the first notice touching its condition came through a member of the police force; that there were no indications as to how the wire came to break; that they sometimes broke of their own accord, but the cause of the present fracture was ascribed either to the crossing of the wires in a gale, or to the blowing of a limb from a tree, or something of the kind across them, causing the current to pass from one to another, thus severing one of them by burning it at the point of contact. Both parties having rested, defendant moved the court to direct a verdict in his behalf, but this was also refused; and error is assigned both as it respects the motion for...