Consolidated Gas, Elec. Light & Power Co. v. State

• Decision Date: 13 January 1909
• Citation: 72 A. 651,109 Md. 186
• Parties: CONSOLIDATED GAS, ELECTRIC LIGHT & POWER CO. v. STATE, to Use of SMITH et al.
• Court: Maryland Court of Appeals

72 A. 651

109 Md. 186

CONSOLIDATED GAS, ELECTRIC LIGHT & POWER CO. v. STATE, to Use of SMITH et al.

Court of Appeals of Maryland

January 13, 1909

Appeal from Baltimore City Court; George M. Sharp, Judge.

Action by the State of Maryland, for the use of Mary O. Smith and another, against the Consolidated Gas, Electric Light & Power Company. From a judgment for plaintiff, defendant appeals. Affirmed. The court gave the following instructions:

"If the jury find from the evidence that the defendant company owned and maintained a certain insulated wire carrying electrical current of high voltage, which said wire was fastened to and supported by a cross-arm of a certain pole located in the bed of Guilford avenue, north of Eager street, in the city of Baltimore; and if the jury further find that the said pole was jointly used by the defendant and by the Western Union Telegraph Company; and if the jury further find that Harry H. Smith, the husband of the equitable plaintiff, was employed by the said Western Union Telegraph Company as a telegraph lineman, and that in the course of his duties in such employment it became necessary for him to ascend the said telegraph pole, and to come into close proximity or contact with the said wire owned by the defendant; and if the jury further find that the insulation on said wire, at the time of the happening of the events which are the subject of this suit, was defective because of the negligence of the defendant, so as to make the said wire a source of danger to persons coming into close proximity or contact with the same; and if the jury further find that, while the said Harry H. Smith was so engaged in his duties, and exercising such reasonable care as might be expected of a reasonably prudent man under the circumstances, he came into contact with said wire, and received the injuries from which he died--then the verdict of the jury should be for the plaintiff.

"If the jury find from the evidence that the defendant company owned and maintained a certain insulated wire carrying electrical current of high voltage, which said wire was fastened to, and supported by, a cross-arm of a certain pole located in the bed of Guilford avenue, north of Eager street in the city of Baltimore; and if the jury further find that the said pole was jointly used by the defendant and by the Western Union Telegraph Company; and if the jury further find that Harry H. Smith, the husband of the equitable plaintiff was employed by the said Western Union Telegraph Company as a telegraph lineman, and that in the course of his duties in such employment it became necessary for him to ascend the said telegraph pole and come into close proximity or contact with the said wire owned by the defendant; and if the jury further find that the said defendant had, prior to the time of the happening of the events which are the subject of this suit, caused certain cuts to be made in the insulation of said wire at or near the point where the same was fastened to said cross-arm of said pole for the purpose of making tests, or for some other purpose, and that said defendant had negligently allowed the said cut places in said insulation to remain bare and uncovered, so as to make the said wire a source of danger to persons coming into close proximity or contact with said bare and uncovered portions thereof; and if the jury further find that, while the said Harry H. Smith was so engaged in his duties, and exercising such reasonable care as might be expected of a reasonably prudent man under the circumstances, he came into contact with said bare and uncovered portions of said wire, and received the injuries from which he died--then the verdict of the jury should be for the plaintiff.

"If the jury find from the evidence that the defendant company owned and maintained a certain insulated wire carrying electrical current of high voltage, which said wire was fastened to, and supported by, a cross-arm of a certain pole located in the bed of Guilford avenue, north of Eager street, in the city of Baltimore; and if the jury further find that the said pole was jointly used by the defendant and by the Western Union Telegraph Company; and if the jury further find that Harry H. Smith, the husband of the equitable plaintiff, was employed by the said Western Union Telegraph Company as a telegraph lineman, and that in the course of his duties in such employment it became necessary for him to ascend the said telegraph pole, and to come into close proximity or contact with the said wire owned by the defendant; and if the jury further find that the insulation on the said wire, at the time of the happening of the events which are the subject of this suit, was defective, so as to make this said wire a source of danger to persons coming into close proximity or contact with the same, and that the defendant knew, or by the exercise of due care ought to have known, of such defect; and if the jury further find that, while the said Harry H. Smith was so engaged in his duties, and exercising such reasonable care as might be expected of a reasonably prudent man under the circumstances, he came into contact with said wire, and received the injuries from which he died--then the verdict of the jury should be for the plaintiff.

"The court instructs the jury that, if they find for the plaintiffs, then in assessing the damages they are to estimate the reasonable probability of the life of the deceased, Harry H. Smith, and give his widow, Mary O. Smith, and his child, Harry E. Smith, the equitable plaintiffs, such pecuniary damages, not only for past losses, but for such prospective damages as the jury may find that they have suffered, or will suffer, as a direct consequence of the death of said Harry H. Smith, and in estimating the pecuniary loss or prospective damages sustained by the widow they are to take into consideration her age and health, and the probable duration of her life, and in estimating the pecuniary loss or prospective damages sustained by the said child, the jury are to take into consideration its age and condition in life, and what it could have reasonably expected to have received from the deceased for its support and education up to the time of its attaining 21 years of age; the verdict to be apportioned between the said widow and child in such amounts as to the jury may seem right and proper.

"The defendant prays the court to instruct the jury that in estimating damages in this case they cannot allow anything for the pain and suffering which Harry H. Smith may have endured after his accident, nor for the grief and mental anguish of his wife occasioned by his death.

"The defendant prays the court to instruct the jury that they cannot find for the plaintiffs in this case unless they find: (1) That the deceased, at the time of his accident, was using due and ordinary care such as an ordinarily careful and prudent lineman would use under similar circumstances; and (2) that the defendant was guilty of some act of negligence on its part, which directly contributed to the happening of the accident resulting in his death.

"The defendant prays the court to instruct the jury that, if they find from the evidence that the deceased, Harry H. Smith, by any failure to use due and ordinary care on his own part, directly contributed to the happening of the accident which caused his death, then their verdict must be for the defendant, notwithstanding that they may find that the defendant was equally, or even to a greater extent, guilty of a failure to use due and ordinary care, and no matter how gross or culpable such failure on the part of the defendant may have been."

Argued before BOYD, C.J., and PEARCE, SCHMUCKER, BURKE, WORTHINGTON, and THOMAS, JJ.

Charles Markell, Jr., and Vernon Cook, for appellant.

Joseph N. Ulman, for appellee.

PEARCE J.

This suit was brought by the state, for the use of Mary O. Smith, widow, and Harry E. Smith, infant son, of Harry H. Smith, deceased, against the Consolidated Gas, Electric Light & Power Company, to recover damages for the death of said Harry H. Smith, caused by the alleged negligence of the defendant. There was a verdict of $4,800, of which there was apportioned by the jury to the widow the sum of $2,300, and to the infant child $2,500, and from the judgment on this verdict the defendant has appealed.

There are 38 exceptions, the last being to the ruling on a motion to strike out certain evidence admitted subject to exception, and upon the prayers, and all the others being to rulings on the admission of evidence.

The deceased was a lineman of the Western Union Telegraph Company, and came to his death on May 8, 1907, while engaged in his work as such lineman, by reason of his hand coming in contact with an electric light wire of the defendant company carrying a current of 2,200 or 2,300 volts, supported upon a cross-arm belonging to the defendant company, and maintained upon a pole of the Western Union Telegraph Company. At the point where Smith's hand came in contact with this wire the insulation had been cut away by some one unknown, for the space of an inch, or an inch and a half, close to the cross-arm. The pole in question was a cable pole. At its top were seven double arms of the telegraph company carrying about 60 of its wires. The cable box was below these seven arms, and below these seven arms was a platform about 20 feet from the street, supported by two iron braces or angle irons bolted to the pole. About 6 feet below the lowest Western Union arm was the cross-arm of the defendant carrying its wires, and below that was another cross-arm belonging to the United Railways & Electric Company. On the day of the accident Smith, in company with Eyler and Uhler, two other linemen of the telephone...