Curcuru v. Peninsular Elec. Light Co.

• Decision Date: 30 June 1919
• Docket Number: 3198.
• Citation: 258 F. 785
• Parties: ******* v. PENINSULAR ELECTRIC LIGHT CO.
• Court: U.S. Court of Appeals — Sixth Circuit

258 F. 785

*******

v.

PENINSULAR ELECTRIC LIGHT CO.

No. 3198.

United States Court of Appeals, Sixth Circuit.

June 30, 1919

Jos. T *************, of Detroit, Mich., for plaintiff in error.

James V. Oxtoby, of Detroit, Mich., for defendant in error.

Before KNAPPEN and DENISON, Circuit Judges, and WALTER EVANS District judge.

WALTER EVANS, District Judge.

Vincenzo *******, 25 years old, and a subject of the king of Italy came to the United States and settled in Detroit, Mich., in 1912. At the time of his death he was employed by Jackson &amp Maurice Company, a firm which was constructing a two-story cement building on a lot on the northwest corner of North Grand boulevard and Hastings street in that city. While thus employed, on the 28th day of March, 1914, ******* was instantly killed upon coming in too close proximity to the electric wires of the defendant in error, and which wires, at least 10 years before that date, it had erected, and which it had ever since maintained and operated. The poles on which its wires were strung stood in an alley and in a line which ran near the walls of the building which Jackson & Maurice Company were constructing. On April 7, 1915, the plaintiff was duly qualified as administrator of the decedent's estate, and later instituted this action in the court below for the recovery of $25,000 for pecuniary losses and damages alleged to have resulted from the death of his intestate.

The declaration contains two counts, but it is conceded that the second count has become of no further importance. The first count stated the basis of the plaintiff's claim to recover the compensation and damages sought. It averred that the defendant's poles supporting its wires were set in the ground on the north side of the alley, the alignment of the poles running east and west and up to where it crosses Hastings street; that for over five years prior to March 28, 1914, these poles supported ten wires attached to glass insulators attached to cross-arms at or near the tops of the poles; and that for over five years previously one of the poles was located on the northwest corner of the alley referred to and Hastings street. This alley was a public highway, and had been known as such for ten years previously. One of the defendant's poles was located on the north side of the public alley, about 100 feet west of the pole on Hastings street, and all of defendant's line of poles extended about 30 or 40 feet above the ground. Prior to March 28, 1914, and on that date there was a cross-arm supported by a brace and having attached to it five glass insulators supporting the wires, and prior to that date also another cross-arm was attached to said pole in a horizontal direction about 2 feet below the first cross-arm, which was supported by a brace attached to the pole, and attached to those cross-arms were five glass insulators supporting as many wires.

It is further averred that on March 28, 1914, it became and was necessary for the employes of the Jackson & Maurice Company to work in close proximity to the described poles and wires of the defendant, which, it was averred, was well known to the defendant. Plaintiff further averred that on and long prior to the 28th of March, 1914, the defendant was supplying electrical energy to divers persons, and that said electrical energy passed through the wires on the poles referred to, and which wires were known as high tension wires, and which electrical energy was of deadly potency, and that surrounding said high tension wires there was a deadly magnetic field.

The declaration then averred (probably quite as much matters of legal conclusion as of fact) that it then and there became and was the duty of the defendant, first, not to construct or place said high tension wires over or upon the property line of the lot where the employes of said Jackson & Maurice Company had to go in the performance of their duties; second, to construct and equip said high tension wires at such a distance from the property line of said lot that it would be impossible for the employes of that firm to be injured; third, to properly and safely insulate said high tension wires, so as to render impossible discharges of electrical energy at points where the employes of that firm had to go in the discharge of their duties; fourth, to properly and safely insulate said high tension wires, so that the employes referred to, in coming in contact with or getting in the magnetic field, would not receive an electrical shock; fifth, to properly and at reasonable intervals inspect said high tension wires; sixth, to construct and maintain said high tension wires at the point where the accident occurred, so as to render it safe for the employes of the firm referred to to perform their duties; seventh, not to use high tension wires for the transmission of its electrical energy in such a way as to render it dangerous to the employes of Jackson & Maurice Company in the discharge of their duties for that firm; and, eighth, to remove the pole located at the northwest corner of the intersection alley and Hastings street to a sufficient distance to prevent the wires on top of same from being unsafe for the employes of that firm.

Having alleged these to be the duties of the defendant, the plaintiff in his declaration further alleged that defendant had failed and neglected to perform any one of those duties, and this failure to perform those alleged duties is the negligence which is alleged to have brought about the death of the plaintiff's intestate, who, it is averred, while leveling the concrete on the top of the second story of the building, and performing the work incident to his employment, and while then exercising due care and without any fault on his part, came within the deadly magnetic field of the high tension wires of defendant, which had negligently and unlawfully been constructed and maintained over the top of said pole, and that the deceased did then and there receive an electrical shock from said wires of terrible potency, and was thereby electrocuted and killed, all on account of said electrical shock, and, having fallen to the floor of the second story of said building, was burned and lacerated in flesh, deadened in nerves, and death ensued.

Plaintiff averred that the death of said decedent was brought about by the negligent and unlawful conduct of the defendant in constructing, maintaining, and utilizing the high tension wires at a point dangerously near the place where plaintiff's intestate was compelled to go in the due performance of his duties. Plaintiff alleged that the decedent had left as heirs and next of kin his wife, 21 years of age, and his father and mother, each 65 years of age, and both of whom were dependent on decedent's intestate for support. It is claimed that the cause of action for negligence imputed to the defendant vested in the decedent's estate and in its administrator, and that the deceased contributed $25 monthly to the support of his wife and a like amount to each of his parents, and would have continued to do so during their expectancy of life. Plaintiff finally averred that by reason of these facts, and the injury thereby done, the right of action to recover therefor vested in the plaintiff's administrator, and he prays judgment for the sum of $25,000 as damages therefor.

The defendant demanded a trial of the matters set forth in the plaintiff's declaration, thereby putting in issue the truth of each and all of the averments therein made. Defendant also gave notice that it would give in evidence under the general issue, and would insist in its defense upon various matters, only two of which are necessary to be noticed, viz., first, that at the time of the injury the...