Crespin v. Albuquerque Gas & Electric Co.

• Decision Date: 05 October 1935
• Docket Number: No. 4104,4104
• Citation: 50 P.2d 259,39 N.M. 473
• Court: New Mexico Supreme Court
• Parties: CRESPINv.ALBUQUERQUE GAS & ELECTRIC CO.

39 N.M. 473

50 P.2d 259

CRESPIN

v.ALBUQUERQUE GAS & ELECTRIC CO.

No. 4104

Supreme Court of New Mexico.

Oct. 5, 1935.

Appeal from District Court, Bernalillo County; Dailey, Judge.

Action by Aristeo R. Crespin against the Albuquerque Gas & Electric Company. Judgment for plaintiff, and defendant appeals.

Affirmed.

Court has wide discretion in limiting cross-examination of parties.

W. A. Keleher and Theo. E. Jones, both of Albuquerque, for appellant.

Mechem & Hannett, of Albuquerque, for appellee.

HUDSPETH, Justice.

Judgment was entered upon the verdict of a jury for personal injuries received in a city park from an electric power line. This appeal followed.

According to the theory of appellant's lineman, the break in the wire was caused by a “tall slender tree” being blown by the wind against the wires from time to time, which wore off the insulation until it was insufficient to imprison the current within the wires, and during the storm on the afternoon of the accident the wind pressed the tree against the wires, causing the wires to come in contact with each other, which resulted in a short circuit. The wires burned in two and fell to the ground. The line had been down at least once before at or near this point during its two or three years' existence. The park was a playground open to the public. The appellee testified that on the day of the accident one Lavato, a fellow employee of the city, told him that their boss had ordered them to put up the wires; that the current had been turned off; that he took hold of one wire and was wrapping it around a tree above his head when he received the shock and other injuries from the electric current. There was also testimony as to the character of short circuit breaker in use on this line at the time of the accident, one of the points in dispute, and also as to the location of “the tall slender tree,” with reference to its proximity to appellant's power line, it being contended by appellee that there was negligence in constructing the line so close to the tree; also that appellant was guilty of negligence in failing to remedy the condition after the first break in the line at that point. That proper inspection would have disclosed the menace of the tall slender tree to the maintenance of the wires intact.

[1][2][3][4][5] The first point relied upon for reversal is that there was no substantial evidence of negligence on the part of appellant. Mr. Justice Lockwood, in Salt River Valley Water Users' Asso. v. Compton, 39 Ariz. 491, 8 P.(2d) 249, 250, said: “The law in regard to the proper handling of electric currents is of comparatively recent development, and is still to a great extent in its formative period. The decisions on the subject are in apparent hopeless contradiction, and cases can be found supporting almost any view as to the extent of the responsibility of those engaged in dealing with such currents. We think the best rule in regard to the care necessary in handling highpower transmission lines may be stated as follows: ‘Those engaged in transmitting such a dangerous force as electricity, which gives no warning of its presence and is not apparent to the senses, are required to exercise a degree of care in constructing and maintaining the wires over which it is transmitted commensurate with the danger to be apprehended from contact with such wires or the escape of electricity therefrom; but they are not insurers against accidents or injuries.’ See Bunten v. Eastern Minnesota Power Co., 178 Minn. 604, 228 N. W. 332, 333.”

And Judge Kenyon in Dierks Lumber & Coal Co. v. Brown (C. C. A.) 19 F.(2d) 732, 735, said: “The defendant in carrying on the business of selling and conveying over its wires a dangerous electric current, while not an insurer of the safety of those who might rightfully use the same, was required to exercise a high degree of care to protect those likely to come in contact therewith commensurate with the dangerous character of, and consistent with the practical operation of, the business. That duty extended not only to the erection, maintenance, and operation of its plant and apparatus, but likewise to inspection thereof to discover defects.”

The evidence, while circumstantial, was sufficient to justify the jury in believing that the break in the line was caused by the tall slender tree being blown against the wires, as outlined above. Hepp v. Quickel Auto & Supply Co., 37 N. M. 525, 25 P.(2d) 197; Sullivan v. Mountain States Power Co., 139 Or. 282, 9 P.(2d) 1038. It is not claimed that the storm on the day of the accident was unusual. A high degree of care was required of appellant to maintain the wires intact in the park frequented by men, women, and children. The degree of diligence in proper construction of the power line so as to avoid contact with trees in a public park which would result in the parting of the wires, and in the removal of menaces of this sort which was necessary to constitute due care was, partially at least, a question of fact for the jury. Gilbert v. New Mexico Construction Co. (N. M.) 44 P.(2d) 489. In Runkle v. Southern Pacific Milling Co., 184 Cal. 714, 195 P. 398, 399, 16 A. L. R. 275, it is said: “It is idle to discuss upon appeal to this court the weight of the evidence upon which the judgment rests, and, of course, it is only when the facts of a given case are not in any event or in any view of the case susceptible to the inference of negligence sought to be deduced therefrom that the question of negligence becomes one of law for the sole consideration of the court rather than one of fact for the determination of the jury.”

[6][7][8] The next point relied upon for reversal is the defense of contributory negligence. Appellee had tended for two seasons a pump located in the park near the scene of the accident, driven by the current from this power line. He knew that the line carried a heavy load of electricity. He put on gloves before taking hold of the wire, and there was testimony to the effect that he hesitated, or at first refused to help Lavato put up the wires. Also that he was warned by another workman to let the wires alone. He testified that he picked up the wire without thinking. Appellant argues that under the facts stated the appellee was guilty of negligence as matter of law. It is a well-recognized rule that one who voluntarily puts himself in contact with a live wire after he has had time to think, knowing it to be charged with a dangerous current, is guilty of contributory negligence. Barnett v. Des Moines Electric Co. (C. C. A.) 10 F.(2d) 111, where a review of the cases by Judge Phillips will be found.

But the testimony of appellee that he had been informed that the current had been turned off puts a different aspect on the question. This court is unable to say that the appellee was so palpably negligent that reasonable minds could not differ one from the other on the question as to whether he acted as a reasonably prudent man would have acted under the same circumstances. We recently said: “Where reasonable men may fairly differ upon the question as to whether there was contributory negligence or not, the determination of the fact is for the jury.” Russell v. Davis, 38 N. M. 533, 37 P.(2d) 536, 539.

[9][10] Over objection that it was hearsay, the appellee was permitted to testify that Lavato had stated to him that the current had been turned off. This testimony falls in one of the well-recognized exceptions to the hearsay rule. 22 C. J. 284. Professor Wigmore says: “Wherever an utterance is offered to evidence the state of mind which ensued in another person in consequence of the utterance, it is obvious that no assertive or testimonial use is sought to be made of it, and the utterance is therefore admissible, so far as the Hearsay rule is concerned.” Wigmore on Evidence (2d Ed.) § 1789. It is argued that...