Davidson v. Otter Tail Power Co., 22469.

• Decision Date: 09 December 1921
• Docket Number: No. 22469.,22469.
• Citation: 150 Minn. 446,185 N.W. 644
• Parties: DAVIDSON v. OTTER TAIL POWER CO.
• Court: Minnesota Supreme Court

150 Minn. 446

185 N.W. 644

DAVIDSON

v.OTTER TAIL POWER CO.

No. 22469.

Supreme Court of Minnesota.

Dec. 9, 1921.

Appeal from District Court, Otter Tail County; Wm. L. Parsons, Judge.

Action by Minnie Davidson, as mother and natural guardian of Ernest Davidson, an infant, suing in his behalf, against the Otter Tail Power Company. Judgment for the defendant, and from an order denying her motion for new trial, the plaintiff appeals. Order reversed.

Syllabus by the Court

The plaintiff's minor son was injured by coming into contact with an electric wire of the defendant. Whether the defendant was negligent, and whether the boy was negligent, were questions for the jury; and it was error to direct a verdict for the defendant. C. E. Warner, of Minneapolis, for appellant.

N. F. Field, of Fergus Falls, for respondent.

DIBELL, J.

This is an action by the plaintiff, the mother of Ernest Davidson, a boy 10 years and 3 months old at the time of his injury, to recover in his behalf damages which he sustained by coming into contact with a live electric wire of the defendant. The court directed a verdict for the defendant. The plaintiff appeals from the order denying her motion for a new trial.

The defendant, an electric power company, had a dam and switch house and other buildings, and owned a tract of land 5 1/2 miles southwest of Fergus Falls at a point called the Dayton Hollow Dam. About 200 feet southeast of the switch house it had a duplex house for the use of the two men in charge of the plant, each of whom had charge of a shift of 12 hours. One of these men was the husband, now deceased, of the plaintiff, and the father of Ernest, and he lived with his wife and a large family of children in the house mentioned.

In the early part of 1914 the company was adding a second story to its switch house. In the second story the lightning arresters were to be placed. At the time they were outside the switchhouse resting on wooden blocks, and were inclosed by a wooden shack. These lightning arresters, as they appeared from the outside and so far as they need be described, consisted of three tubular tanks about 18 inches to 2 feet in diameter and 6 feet high, bushed at the top. They were about 2 feet apart and were parallel with the south side of the switch house. At the top they were connected with electric wires running from the first story of the switch house. The wires carried a voltage of 38,000 or 40,000, and when they entered the tanks were about 7 1/2 feet from the ground. The tanks were not in themselves dangerous.

In the course of the construction of the second story the company built an outside stairway attached to the south side of the switch house. At its top it connected with a platform from which there was an entrance through a doorway into the second story. The foot of the stairway was about 16 inches from the nearest part of the wooden shack inclosing the lightning arresters, and was 3 to 3 1/2 feet high. The tank nearest the stairway was something like 18 inches inside the shack. As the stairway ascended it passed easterly and away from the electric wires. There was a railing on the outside, and at the lower end wooden slats were nailed across to keep persons from going to the second story. There is a dispute as to whether the railing and the slats were in place at the time Ernest was injured, which was in the early part of July, 1914. The plaintiff claims that they were not; the defendant claims that they were. The presence of the railing, with slats across the top of the lower end, seems as favorable to a right of recovery as its absence.

It is uncertain just how Ernest was injured. The trial was conducted upon the theory that his hand came in contact with a live wire. The evidence is that a space within 2 feet of wires so heavily charged is a danger zone. Not much attention is given to this fact. The danger of a ‘brush’ shock such as was involved in Hoppe v. City of Winona, 113 Minn. 252,¹ is not developed. It is certain that Ernest was playing about the stairway. He was found at the foot where he had fallen. There is a claim that he was on the fourth or fifth step, that there was no railing, and that he slipped or fell, and in trying to save himself caught the wire. This seems improbable; it is perhaps impossible. It is quite as likely that he was playing on the slats at the lower end of the stairway, or on the railing, and slipped and was about to fall, and caught the wire, or in some way came in contact with it. In any event he was severely burned by electricity.

The wires carried a deadly current. We have had occasion to comment upon the amount of watchfulness and diligence necessary to constitute the ordinary care which negatives negligence where such an agency is used. Drimel v. Union Power Co., 139 Minn. 122, 165 N. W. 1058;Hoppe v. City of Winona, 113 Minn. 252, 129 N. W. 577,33 L. R. A. (N. S.) 499, Ann. Cas. 1912A, 247;Musolf v. Duluth Edison El. Co., 108 Minn. 369, 122 N. W. 499,24 L. R. A. (N. S.) 451;Gilbert v. Duluth Gan. El. Co., 93 Minn. 99, 100 N. W. 653,106 Am. St. Rep. 430. We have had occasion to comment upon the care exacted of those using a dangerous agency, such as dynamite, when children are about. Mattson v. Minnesota,...