Denver Consol. Electric Co. v. Walters

• Decision Date: 01 April 1907
• Citation: 89 P. 815,39 Colo. 301
• Parties: DENVER CONSOL. ELECTRIC CO. v. WALTERS.
• Court: Colorado Supreme Court

89 P. 815

39 Colo. 301

DENVER CONSOL. ELECTRIC CO. v. WALTERS.

Supreme Court of Colorado

April 1, 1907

Appeal from District Court, City and County of Denver; P. L. Palmer Judge.

Action by Clifton Wood Walters against the Denver Consolidated Electric Company. Judgment for plaintiff, and defendant appeals. Reversed.

For former report, see 12 Colo.App. 145, 54 P. 960; 17 Colo.App 192, 68 P. 117.

Wolcott, Vaile & Waterman (Wm. W. Field, of counsel), for appellant.

E. T Wells, J. H. Chiles, and R. T. McNeal, for appellee.

CAMPBELL J.

In his complaint the plaintiff charges the defendant company with negligence which occasioned him personal injury, for which he asks compensation in damages. The answer of the defendant denies that it was negligent, and by an affirmative defense alleges that plaintiff's injuries, if any, were brought about solely as the result of his own negligent act. The trial to the jury upon these issues resulted in a verdict for the plaintiff, and judgment went accordingly, from which the defendant appealed, and has assigned many errors of which the material and substantial ones are considered. This was the third trial of the action. Upon the first trial the action was dismissed by the district court upon the ground that the complaint did not state a good cause of action. Upon appeal to the Court of Appeals, this judgment was reversed; the court, by Thomson, P.J., holding that the complaint was good. Walters v. Electric Light Co., 12 Colo.App. 145, 54 P. 960. Upon the second trial, the jury returned a verdict for the defendant, and judgment entered thereon was reversed by the Court of Appeals because of erroneous instructions. Walters v. D. C. E. L. Co., 17 Colo.App. 192, 68 P. 117.

1. The first proposition advanced by appellee which we consider is that on the present appeal the decisions of the Court of Appeals in the cases mentioned constitute the law of the case. This point is conclusively settled against appellee by previous decisions of this court. Brown v. Tourtelotte, 24 Colo. 204, 50 P. 195; Davidson v. La Plata Co., 26 Colo. 549, 59 P. 46; City of Pueblo v. Shutt Inv. Co., 28 Colo. 524, 67 P. 162, 89 Am.St.Rep. 221. The point, however, is not important here, because the law, as laid down by the Court of Appeals, meets with our approval.

2. In view of instruction No. 7 given by the court, it is important with particularity to state that part of the complaint charging the negligence of the defendant and the antecedent matters of description or inducement. After allegations that defendant corporation was maintaining and operating an electric light plant in the city of Denver for conveying and supplying electric light to dwelling houses and other buildings therein, and that it had connected its wires with the dwelling house of plaintiff's father, with whom plaintiff, a minor 12 years of age, was then living and that such connection was for the purpose of supplying light to the house, and defendant had attached to the house, directly under one of the windows, an electrical device called a 'converter,' and had set and placed certain iron supports to receive and hold glass insulators upon which were attached wires connecting with the house and conveying thereto the electric current for furnishing light, the complaint proceeds to charge that, whereas, it was the duty of defendant to cause the wires to be sufficiently and securely covered and insulated, and at all times so to keep and maintain them, the defendant, on the contrary, so negligently managed and conducted the wires that the covering thereon became weak and broken and out of repair, so that the wires were not covered or insulated, the result of which was that the current of electricity borne thereupon would and did pass therefrom; that on the day in question the plaintiff, who was an inmate of his father's house, while looking out of the window of the bathroom, and seeing that one of the glass insulators had by some means fallen, or been removed, from the iron support where it was wont to rest, and not knowing the dangerous condition of the wire, or that any electric current could or might pass therefrom, and not realizing that the attempt to replace the insulator was attended with any danger to him, seized hold of the insulator in order to place it upon the iron support, and to the wire which was so attached, being naked and bare near to the insulator, the covering thereof being broken, plaintiff's hand and fingers were drawn by the electric current borne by the naked wire, or accidentally and without plaintiff's fault placed thereon by him, and 'thereby, and solely by means of the negligence and want of due skill and care of the defendant in and about maintaining and caring for the said wire and preserving the same insulated and safe as aforesaid, the electrical current borne upon the said wire passed to and into the hand and body of plaintiff, and by the force thereof,' etc., the injuries were sustained.

The seventh instruction is as follows: 'It is the duty of every corporation which undertakes to supply the electric current to a dwelling to exercise a high degree of care in order to prevent injury to those inhabiting the dwelling, and particularly children by coming in contact with their wires and other appliances, and such care must be exercised both in protecting such wires and appliances against contact, and in the selection of the locality where the same are placed, and if the defendant company failed to exercise this degree of diligence in either respect, and by reason thereof the plaintiffs, or either of them, received injury without fault on their part, the defendant is liable.'

The paragraph, in effect, told the jury that plaintiff's cause of action was grounded upon two acts of negligence--One in selecting an improper place on the wall of the house for placing its wires and converter; the other in failing properly to keep them safe after they were placed there--and that, if the defendant failed in either respect to exercise the proper degree of diligence, it was liable if injury thereby was caused plaintiff without fault on his part. This instruction is fundamentally wrong, and the error in giving it is accentuated, since, in its third instruction, the court had fully defined what defendant's duty was, concerning the only charge of negligence specified, in maintaining its accessible wires. When at the trial plaintiff offered evidence concerning the location of the wires and electrical appliances, the defendant objected to the same upon the ground that the charge of negligence in the complaint was not in their location, but only in neglect in the maintenance of wires. The trial court, however, overruled the objection because, as the transcript shows, according to its notion, the Court of Appeals had ruled such evidence of location admissible generally. An examination of the opinion of Gunter, J., in that case discloses that such evidence was held to be proper under the issues, but for one purpose, and one only, and the district court in holding the evidence admissible as relevant to a supposed issue of negligence in location clearly misapprehended the effect of the opinion.

The Court of Appeals, in considering two of the instructions of the district court upon the second trial, held that there was error therein, for the reason that the jury thereby were told that they could not consider the location of the converter, or transformer, in determining the degree of care that should be exercised in preserving the wire in question properly insulated. Judge Gunter had already said, as had Judge Thomson upon the first review, that the gist of the charge of plaintiff was that the defendant, through negligence, permitted the wire in question to be in an uninsulated condition, and he held that such location was a material factor to be considered by the jury in determining the degree of care which the defendant should bestow by proper inspection and otherwise in maintaining the wire in a reasonably safe condition, adding: 'If located at a point readily accessible, the law would require greater care of defendant to preserve the wire insulated than if the wire was located at an inaccessible point.' It thus clearly appears that, according to the ruling of the Court of Appeals, which we approve, the location of the wires and converter, though not set up by plaintiff as a substantive or separate charge or cause of action, was, nevertheless, material and proper to be considered by the jury in determining the degree of care to be exercised by the defendant in preserving and maintaining the wire in question in a safe and suitable condition, failure to do which was the only substantive cause of negligence relied on.

Although the trial court was right in overruling the defendant's objection to the admission of evidence as to the location of the electrical appliances for the reason just given, yet at the time of its admission the court should have admonished the jury that it was not admissible to establish any substantive act of negligence alleged in the complaint but solely for the purpose of enabling them to measure the degree of care which the defendant is required to exercise in maintaining the wires in a properly insulated condition, and later on in its formal instruction should have advised the jury as to the limited purpose for which they could consider it. The plaintiff does not deny that this instruction tells the jury that they may hold the defendant if it has been guilty of negligence in the location of the electrical appliances, but says that the court should read the complaint as if such negligence was charged. It is true that, where a complaint avers negligence in general terms, it is good as against a general demurrer;...