City of Logansport v. Smith

• Decision Date: 01 February 1911
• Docket Number: No. 6,859.,6,859.
• Citation: 47 Ind.App. 64,93 N.E. 883
• Parties: CITY OF LOGANSPORT v. SMITH.
• Court: Indiana Appellate Court

47 Ind.App. 64

93 N.E. 883

CITY OF LOGANSPORT

v.SMITH.

No. 6,859.

Appellate Court of Indiana, Division No. 1.

Feb. 1, 1911.

Appeal from Circuit Court, Cass County; Frank D. Butler, Special Judge.

Action by Lyman O. Smith, administrator of David J. Smith, deceased, against the City of Logansport. From a judgment for plaintiff, defendant appeals. Affirmed.Geo. W. Funk, Antrim & McClintic, and E. P. Kling, for appellant. Robert J. Loveland and Kistler & Kistler, for appellee.

FELT, J.

This is an appeal from the Cass circuit court from a judgment in favor of appellee, in the sum of $1,500. The errors assigned are the overruling of the demurrer to the first, second, and third paragraphs of complaint, overruling appellant's motion for judgment on the answers to the interrogatories notwithstanding the general verdict, overruling the motion for a new trial and the motion in arrest of judgment. The first paragraph of the complaint is for alleged negligence of the appellant in constructing an electric light plant in the city of Logansport, resulting in an injury causing instant death to the appellee's decedent, David Judson Smith, an employé of the Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company, in the capacity of switchman or yard brakeman.

It is alleged in substance that the appellant owned and operated an electric light plant in said city, and in so doing maintained throughout said city electric light wires highly charged with electricity, which were supported on poles about 15 or 20 feet above the surface of the street; that in placing the same along and upon Berkley street appellant “knowingly erected and maintained the same under, near, and adjacent to numerous telephone wires similarly supported on poles on and along Canal street,” which street crossed said Berkley street; that telephones were connected with said wires and used by the employés of said Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company in conducting its business; that said electric light wires on the 20th day of August, 1905, and during all the time the appellant operated its electric light plant, were highly charged with a dangerous and deadly current of electricity, and appellant carelessly and negligently, with full knowledge of the danger occasioned thereby, placed and maintained said wires in such position and proximity to said telephone wires that the dangerous and deadly current carried over appellant's electric wires was liable to be, and was by one of the city's wires, diverted and communicated to and over one of the telephone wires of the said railway company, to and into the telephone apparatus located in the yards of said company where the decedent was employed; that on said day decedent, while engaged in the discharge of his duties as such employé, without any knowledge or means of knowing the danger created by the position of the city's electric light wires and the said telephone wires, carefully and prudently took hold of one of said telephones for the purpose of using the same, and while so doing, by reason of the carelessness and negligence of appellant in so constructing and maintaining its electric light wires, as aforesaid, received a charge of electricity, which then and there and thereby passed into and through his body, causing instant death.

The second and third paragraphs of complaint are substantially the same as the first paragraph, except that the charge is negligence in the maintenance of the electric light wires for a long time previous to the accident, and at the time of the accident, in the negligent and dangerous manner described in the first paragraph of complaint. The ruling upon the demurrer to the several paragraphs of complaint may be considered together, as it is quite evident if one is good all are good.

The principal objections raised are (1) there is no averment showing that appellant granted to the Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company the right to construct and maintain a private telephone system upon its streets; (2) the appellant owed no duty to the decedent, except to avoid a willful injury. We do not think the complaint bad for failure to specifically aver a grant from appellant to the railway company of the right to maintain its private telephone system upon its streets.

It appears from the complaint that the railway company was engaged in operating a line of railway within and through the city of Logansport, and that in connection therewith it operated railway yards at a point near the intersection of said Berkley and Canal streets; that the telephones were used by the employés of said company in conducing its business; and that the decedent at the time of his injury was in the employment of said company, and engaged in the discharge of his duties as such employé. This shows that he was in a place where he had a right to be, and was not a trespasser. In such situation the appellant owed to him the duty not to injure him, if such injury could be avoided by a reasonable degree of care, and this duty did not depend upon any franchise right of his employer, the railway company. The city, by the averments of the complaint, is shown to have been engaged in the electric light business, using a dangerous and deadly agency-electricity-and to have negligently permitted the same to escape from its wires to the fatal injury of decedent.

Central Union Tel. Co. v. Sokola, Adm., 34 Ind. App. 429, on page 434, 73 N. E. 143, on page 144, was a suit for the negligent killing of a person caused by contact with a telephone wire which lay across a charged and uninsulated electric light wire. Liability was denied because the wire was on private property. The court, by Judge Robinson, said: “It is true it was upon private property, but it was a place where people had a right to go, and where they were liable to go. There is reason in such cases for making the distinction between liability for injuries to persons on private property and liability for injuries to persons using a public street. But if the person injured is not a trespasser, and has a right to be where he is when injured, the duty must extend to him to maintain the wires in a safe condition, although the wires are maintained by the company across private property. Keasbey, Electric Wires (2d Ed.) 247.”

1 Thompson on Neg. § 696, states: “One who artificially collects upon his own premises a substance which, from its nature, is liable to escape and cause mischief to others, must use reasonable care to restrain it, and is answerable for any damages occasioned to others through its escape from a want of such care.” To the same effect the following authorities: 1 Thompson on Neg. § 801; City Elec. St. Ry. Co. v. Conery, 61 Ark. 381, 33 S. W. 426, 31 L. R. A. 570, 54 Am. St. Rep. 262;Defiance Water Co. v. Olinger, 54 Ohio St. 532, 44 N. E. 238, 32 L. R. A. 736;Guinn v. Delaware & A. Tel. Co., 72 N. J. Law, 276, 62 Atl. 412, 3 L. R. A. (N. S.) 988, 111 Am. St. Rep. 668; Fitzgerald v. Edison Elec. Illumin. Co., 200 Pa. 540, 50 Atl. 161, 86 Am. St. Rep. 732;Van Winkle v. Am. Steam Boiler Co., 52 N. J. Law, 240, 19 Atl. 472.

In City Electric St. Ry. Co. v. Conery, supra, the court said: “The main difference between the case last cited and this is the electricity was communicated to the party injured in the former by the electric company's own wire, and in the latter by the wire of another, but the principle upon which the liability is based is the same in both cases. All persons have the right to use the streets, in or over which the wires are suspended, as public highways. Subjecting the dangerous element of electricity to their control, and using it for their own purposes, by means of wires suspended over the streets, it is their duty to maintain it in such a manner as to protect such persons against injury by it, to the extent they can do so by the exercise of reasonable care and diligence. This duty is not limited to keeping their own wires out of the streets, or other public highways, but extends to the prevention of the escape of the dangerous force in their service through any wires brought in contact with their own, and of its transmission thereby to any one using the streets. Only in this way can the public receive that protection due it while exercising its rights in the highways in or over which electric wires are suspended.”

These authorities fully answer appellant's objection that appellee's decedent was an employé of the railway company, and that the city did not owe him the duty of furnishing him a safe place in which to work. This is true as a general proposition, but it does not change appellant's duty to the public to use care in controlling the dangerous current of electricity it was carrying over its wires. This duty extended to the decedent, and his relations to the railway company did not deprive him of that protection, or relieve appellant from liability if that duty was neglected. The cases where no public duty relative to some dangerous substance or agency is shown, and cases applying the doctrine that one who lets or sells property for use is not responsible to third persons for injuries sustained by reason of defects therein, when carefully considered, are found not to conflict with our holding, and in most of them the exception in regard to dangerous substances or agencies is expressly mentioned. This is true of Griffin v. Jackson Light & Power Co., 128 Mich. 653, 87 N. W. 888, 55 L. R. A. 318, 92 Am. St. Rep. 496, relied upon by appellant upon this proposition. 1 Thompson on Neg. § 831, recognizes this distinction and says: “The boundary line excluding this class of cases was said to be this: That where there is no privity of contract between the plaintiff and defendant, and no public duty has been broken by the latter, the plaintiff cannot recover.”

The further objection is urged to the second paragraph of the complaint that it does not aver that when appellee's decedent...