Colusa Parrot Mining & Smelting Co. v. Monahan

• Decision Date: 25 May 1908
• Docket Number: 1,521.
• Citation: 162 F. 276
• Parties: COLUSA PARROT MINING & SMELTING CO. v. MONAHAN.
• Court: U.S. Court of Appeals — Ninth Circuit

162 F. 276

COLUSA PARROT MINING & SMELTING CO. v. MONAHAN.

No. 1,521.

United States Court of Appeals, Ninth Circuit.

May 25, 1908

W. M Bickford and George F. Shelton, for plaintiff in error.

H Lowndes Maury, for defendant in error.

Before GILBERT, ROSS, and MORROW, Circuit Judges.

ROSS Circuit Judge.

The defendant in error was an employe of the plaintiff in error and as such was sent by the company to the roof of its orehouse to do some work, where he slipped, and, in falling caught hold of a live wire, which inflicted the injuries for which he sued and recovered a verdict and judgment for damages in the court below. The case is brought here by the defendant below.

The plaintiff alleged in his complaint that the defendant negligently and intentionally permitted the roof of its orehouse to be unsafe and dangerous to all persons going thereon, in that it negligently and wantonly permitted a certain copper wire, insufficiently and carelessly insulated, carrying and charged by the defendant with a dangerous current of electricity, to wit, 2,500 volts, to hang and remain at a distance of only four feet above the roof where the plaintiff was sent and put to work by the defendant; that at the time the defendant strung the wire so insufficiently insulated defendant knew that the plaintiff and other of its employes would in the course of their employment likely go upon the roof and would be likely to come in contact with the wire, and be thereby killed or receive great bodily injury; that the pretended insulation of the wire was weatherproof only, and was not designed to protect human beings, and was insufficient for the latter purpose; that for a long time prior to the plaintiff's injury the defendant well knew that at the place where the plaintiff touched the wire it was not insulated, and yet permitted the same to hang about four feet above the roof; that on or about the 12th day of July, 1904, the plaintiff was sent by the defendant upon the said roof, 'and without any negligence on his part and in the exercise of all care on his part, and being ignorant of the danger of touching the said wire, inadvertently, with his left hand, and while engaged in the business of his master, took hold of the said wire so insufficiently and negligently insulated by the defendant as aforesaid, and charged by the said defendant with electricity as aforesaid; that immediately the said current of electricity passed through the body of this plaintiff into the said roof, the same being of iron as aforesaid, and which said roof was a good conductor of electricity, and the plaintiff was thereby grievously burned and injured' in particulars specifically stated.

The answer of the defendant put in issue the alleged negligence on its part, and set up contributory negligence on the part of the plaintiff, in that while upon the roof, which was in a wet and slippery condition and difficult to stand upon, the plaintiff failed to exercise due and proper precautions to avoid slipping, and did slip, and, to save himself from falling, took hold of the wire in question, and thereby received the shock of electricity which caused his injury. Such being the answer of the defendant on that point, we may here dispose of the defense of contributory negligence by saying that the plaintiff could not have taken hold of the wire if the defendant had not permitted it to hang within his reach, and that having sent the plaintiff, who, it appears, was a common laborer, knowing nothing of electrical work and unfamiliar with the perils attending it, on a wet and slippery roof to work, the jury might well have considered that it was, in view of the plaintiff's testimony to the effect that he did not know the wire was dangerous, perfectly natural that he should catch hold of it when he slipped, in the effort to save himself from falling. The answer further set up in defense that the plaintiff assumed the risks incident to his employment, and that among those risks was the presence of the electric wire on the roof of which he complains. The defendant further plead in bar of the action the fact that on the 26th of November, 1904, the plaintiff filed in the court below a complaint against the defendant and others, alleging the same cause of action; that, a demurrer of the defendant to that complaint being sustained, the plaintiff filed therein an amended complaint, which amended complaint the defendant moved the court to strike from the files, the result of which motion is shown by this order entered in the minutes of the court, as appears from the record:

'This cause came on regularly for hearing at this time upon motion of defendant, Colusa Parrot Mining & Smelting Company, to strike from the files the amended complaint; W. M. Bickford and Geo. F. Shelton, Esq., appearing as counsel for said defendant, and H. L. Maury, Esq., as counsel for plaintiff, and thereupon upon motion of counsel for plaintiff, it is ordered that this action be dismissed without prejudice as to said defendant Colusa Parrot Mining & Smelting Company, and without costs to either party. In open court Feb. 14th, 1905.'

The general rule is that an order or judgment dismissing an action without prejudice leaves the party as if no such action had been instituted. Creighton v. Kerr, 87 U.S. 8, 22 L.Ed. 309; Taylor v. Slater, 21 R.I. 104, 41 A. 1001; Seamster v. Blackstock, 83 Va. 232, 2 S.E. 38, 5 Am. St. Rep. 262; Ray v. Adden, 50 N.H. 84, 9 Am.Rep. 175; O'Keefe v. Irvington Real Estate Co., 87 Md. 196, 39 A. 428; Storey's Eq. Pl. Sec. 793; Beech, Eq. Prac. Secs. 643-644; Daniell, Chancery Prac. 659. By statute in Montana, where this case arose, it is declared:

'A final judgment dismissing the complaint either before or after a trial does not prevent a new action for the same cause of action unless it expressly declares, or it appears by the judgment roll, that it is rendered upon its merits.'

Section 1007 of the Statutes of Montana (Code Civ. Proc. 1895), which statute has been construed by the Supreme Court of Montana in accordance with the general rule upon the subject. Glass v. Basin & Bay State Mining Co., 34 Mont. 88, 85 P. 746.

There remains to consider the points made by the plaintiff in error in respect to the sufficiency of the complaint, the question of the defendant's negligence, the alleged assumption of risk by the plaintiff, and the alleged errors of the trial court in respect to the admission of testimony. No point is made in respect to instructions, nor is the charge of the court brought up. It must, therefore, be presumed that the jury was properly instructed. The objection to the sufficiency of the complaint grows out of the use of the word 'inadvertently' in the quotation therefrom which we have heretofore given; the contention of the counsel for the plaintiff in error being that the plaintiff in the case thereby admitted his own negligence. The case cited from the Court of Appeals of Kentucky-- Lexington Ry. Co. v. Fain's Administrator (Ky.) 71 S.W. 629-- in support of the point is, we think, not only against the plaintiff in error on that point, but also against it as respects the defendant's alleged negligence. In that case a boy 14 years of age was killed in the city of Lexington by an electric shock received from one of the wires of the company. The pole to which the pulley wire was attached which the boy took hold of as he passed along the street was in the sidewalk; the wire being about four and a half feet from the ground. The court said, among other things:

'It is not unusual for persons of mature age and judgment, when standing near a tree or post, to lean against it; nor is it unnatural for a boy to touch any object that he may pass in walking along a street or sidewalk. The pulley wire, when it was attached to the reel, was within 4 1/2 feet of the ground, and therefore convenient to the touch of man or boy; and, there being nothing in its appearance to excite alarm or suspicion, it is hardly probable that a boy would know its dangerous character or appreciate the necessity of avoiding contact with it in passing. We think it a self-evident proposition that it was the duty of appellant, in using the streets of the city of Lexington, by permission of the municipal authorities, for purposes of private gain, to so conduct its business as not to injure persons passing along such streets, and to keep the highways occupied by their apparatus in substantially the same condition as to convenience and safety as they were in before such occupancy. The law applicable to this case has been well settled in Kentucky in the several cases that have been brought to this court for final adjudication.

It is that those who manufacture or use electricity for private advantage must do so at their peril, and the only way to prevent accidents where a deadly current is used is to have perfect protection at those points where people are...