Crandall v. Consolidated Telephone, Telegraph & Elec. Co.

• Citation: 127 P. 994,14 Ariz. 322
• Decision Date: 16 November 1912
• Docket Number: Civil 1192
• Parties: ETTA CRANDALL, Administrator of the Estate of EDWARD S. CRANDALL, Deceased, Appellant, v. CONSOLIDATED TELEPHONE, TELEGRAPH AND ELECTRIC COMPANY, a Corporation, Appellee
• Court: Supreme Court of Arizona

127 P. 994

14 Ariz. 322

ETTA CRANDALL, Administrator of the Estate of EDWARD S. CRANDALL, Deceased, Appellant, v. CONSOLIDATED TELEPHONE, TELEGRAPH AND ELECTRIC COMPANY, a Corporation, Appellee

Civil No. 1192

Supreme Court of Arizona

November 16, 1912

APPEAL from a judgment of the District Court of the Third Judicial District, in and for the County of Maricopa. Edward Kent Judge. Reversed and remanded.

STATEMENT OF FACTS BY THE COURT.

This action was brought by the plaintiff, as administratrix of the estate of her deceased husband, to recover damages on account of injuries received by him from the negligent acts of the defendant resulting in his death. The negligence charged in the complaint was that the defendant strung its wires in too close proximity to the power transmission wires of the Consolidated Canal Company's wires without protection against coming in contract with such canal company's wires, in the event of the breaking, sagging, or otherwise of the canal company's wires, and negligent maintenance by the defendant of a telephone instrument at the plant of the Mesa Dairy and Ice Company, where plaintiff's intestate was employed and in charge of the machinery and property of the said dairy and ice company.

It was alleged by the plaintiff, and admitted by the defendant, that the Consolidated Canal Company maintained a system of three copper wires for the transmission of a current for electric power fastened to and supported by poles along the streets etc., of Mesa City. The defendant company maintained a system of two telephone wires running from its main system in the city of Mesa to the Mesa Dairy and Ice Company's plant and connecting the telephone instrument at such plant with the telephone system. These two wires were wrongfully negligently, and without permission of the canal company attached to a pole supporting the canal company's power wires at a point about six feet beneath the power wires. Neither the power wires nor the telephone wires were protected by insulation the one from the other. The telephone instrument in the dairy and ice plant was not protected from injury from an overcharge of electricity by ground wires, fuse plugs, or other approved safety devices. These conditions were known to the defendant, and they had existed for a considerable length of time prior to the date of the accident. On the thirteenth day of May, 1910, the appellant's intestate was engaged in the performance of his duties in and about the dairy and ice company's plant. An excessive current of electricity on the telephone wires caused fire and sparks to fly from the telephone instrument maintained in the boiler-room of the plant and threatened to destroy the plant. The deceased, in order to protect the plant from fire, cut the wires, and in doing he received the electric current into his body, causing his death.

The defendant filed a demurrer, general denial, and pleaded by way of an affirmative answer that the injury was caused by the act of one Leo Cuber cutting a large limb or branch from a fig tree standing on his premises in proximity to the power line, and telephone line of appellee, near where the two lines cross, which limb or branch in falling struck the power wires, causing the same to break and come in contact with the telephone wires, and thereby transfer the electric current from the power wires to the telephone wires leading to the telephone instrument in the dairy and ice company's plant, causing the injury to deceased, and that this injury was due solely to the intervening act of Cuber, and was not caused by the negligence or fault of appellee.

On the trial of the case appellant's counsel in his opening statement to the jury stated that one Leo Cuber climbed a tree upon his property adjacent to the transmission line and cut a limb therefrom, which limb in falling caused the transmission line to break and fall upon the telephone line of appellee. Upon this statement appellee's counsel asked to have the complaint dismissed on the grounds that the act of Cuber was the act of an intervening human agent, and that his act was the proximate cause of the accident to deceased, and that appellee's negligence in the maintenance of its line and instrument was the remote cause of the accident to deceased. Appellee's counsel admitted for the purpose of the motion that the appellee was negligent in the construction and maintenance of its lines under the power lines, without guards or insulation, and in fastening its wires to the poles of the power lines, and was further negligent in not having its telephone instrument in the ice plant properly protected with fuse plugs or other protective devices. On this statement of the case the court ruled that the act of Cuber was an intervening, and not a concurring, cause of the accident, and relieved the appellee from liability, and thereupon dismissed the complaint, and rendered judgment for appellee. From which judgment plaintiff appeals, and assigns as error that the court erred in determining as a matter of law from the complaint and statement that the plaintiff had no cause of action; that the court erred in refusing to submit to the jury the question of the proximate cause of the damages; that the negligence of the defendant was not the proximate cause under the facts admitted; that the concurring negligence of the defendant was not the cause of the damage; that the court erred in refusing to submit to the jury the question as to whether the concurring negligence was the cause of the damage; and that the court erred in refusing to allow the jury to determine from the facts admitted whether the defendant was guilty of negligence causing the death of plaintiff's intestate.

Messrs. Silverthorn & Sexton and Mr. Thos. Armstrong, Jr., for Appellant.

Messrs. Bullard & Carpenter, for Appellee.

OPINION

CUNNINGHAM, J.

Appellee contends that the act of Cuber was an intervening efficient cause of the damage, and that the injury proximately resulted therefrom. The trial court also adopted this view, and so applied the rule to the admitted...