Denver Consol. Electric Co. v. Lawrence

• Citation: 73 P. 39,31 Colo. 301
• Parties: DENVER CONSOL. ELECTRIC CO. v. LAWRENCE.
• Decision Date: 05 May 1903
• Court: Supreme Court of Colorado

73 P. 39

31 Colo. 301

DENVER CONSOL. ELECTRIC CO. v. LAWRENCE.

Supreme Court of Colorado

May 5, 1903

Appeal from District Court, Arapahoe County.

Action by Gilbert W. Lawrence against the Denver Consolidated Electric Company to recover for injuries. Judgment for plaintiff, and defendant appeals. Affirmed.

The complaint, filed May 13, 1899, alleges that the defendant is a corporation engaged in the business of generating producing, and distributing electricity, and supplying the same for light and other purposes to the general public for profit; that the company, in consideration of the compensation required, was engaged in supplying W. H Lawrence with electricity for lighting purposes at his residence, No 247 South Fourteenth street, in the city of Denver; that it was the duty of said company, in so furnishing electricity, to at all times have and maintain a safe plant, machinery, poles, wires, conduits, converter boxes, transformers, and other appurtenances for the proper and safe generation and distribution of electricity throughout said city and to the said premises, and also to inspect and examine the same from time to time, and to at all times keep and maintain the same in good and safe condition so that the said Lawrence and each member of his family might safely use the said electricity upon said premises without danger of damage or injury to them or either of them; that the plaintiff is a son of said Lawrence, and at the time mentioned was living with his father at his said residence in Denver; that on the evening of April 13, 1899, and prior thereto, the said company did not discharge its said duties hereinbefore alleged, so that at the time last aforesaid while the plaintiff was attempting to turn on the electric light in one of the rooms of said premises, and without any carelessness or negligence whatever on his part, he received into and upon his body a severe and terrific charge and current of electricity, whereby the plaintiff suffered serious and permanent injuries, burning his hands and feet so that he was laid up and rendered sore, sick, and lame for a long period of time, and was and is and will be painfully and seriously burned and scarred and permanently injured for the remainder of his life. Following are allegations concerning the earning capacity of the plaintiff, and a prayer for damages in the sum of $20,000. A demurrer upon the ground that 'the complaint does not state a cause of action' was overruled. The defendant answered over.

The fourth paragraph of the answer is as follows: 'Denies that at the times named in said complaint, or at all, it was or is the duty of defendant corporation in furnishing electricity to at all times have or maintain a sound or safe plant, machinery, poles, wires, conduits, converter boxes, transformers, or other appliances, for the proper or safe generation, production, or distribution of such electricity throughout said city or to said premises; on the contrary thereof, avers that this defendant was not at the time named in said complaint, or at all, an insurer of the soundness or safety of its said property, but was and is bound to exercise ordinary and reasonable care and diligence and prudence in order to secure the safety and soundness of its said property; admits that it was the duty of this defendant to inspect and examine its said property from time to time, and to at all times use reasonable and ordinary care and diligence in order to keep and maintain the same in good and safe condition; denies that its duty extended any further in the premises; denies that it was or is an insurer of the safety of the said Lawrence or of any member of his family, or that it was ever at any time bound to any greater duty than the exercise of ordinary care to avoid danger, damage, or injury to the said Lawrence and to his family.'

The sixth paragraph denies that at all times in said complaint named, or on, or prior to, or about, the evening of April 13, 1899, or at all, this defendant did not discharge its duty in the premises.

For a further answer and defense, the defendant alleges that the said injuries were caused by the carelessness and negligence of the plaintiff, directly contributing thereto; and avers that the fixtures and appliances used by the plaintiff in and about the premises were not the property of this defendant, or furnished or provided by this defendant, but, on the contrary, were the property of the said William H. Lawrence; and avers that the appliances furnished and provided as aforesaid were so carelessly and negligently used by the plaintiff at the time and place in question as to induce a current of electricity to be delivered from the ground up through the register upon which the plaintiff was then and there standing, thereby inflicting all injuries received by the plaintiff in the premises. Avers that the plaintiff had just stepped from the bath tub, and was then and there moist and wet with the water used in bathing, and that the plaintiff did, in the attempt to use the fixtures and appliances furnished and provided as aforesaid, carelessly and negligently stand upon said register composed of steel, iron, or some conducting substance, and did then and there carelessly and negligently fail to take hold of the nonconducting appliance furnished for the purpose of turning on the electricity, and carelessly and negligently seized hold of the metallic portion of the fixtures so furnished and provided, and, by reason of said combined and connected negligent acts on the part of the plaintiff, thereby induced a current of electricity to be delivered either from above or below, through his body, thereby causing the accident and injuries complained of. And it avers that the defendant, in all that it did in and about the premises, had fully performed its duty, and had used every care and precaution required of it by law or at all, to render the appliances and material and machinery furnished by it sound and complete, that it had caused each and every part of the machinery used by it to be tested, examined, and inspected; and avers that the accident and injury complained of were not the result of any cause which the defendant could or should have foreseen, but, on the contrary thereof, were occasioned by the carelessness and negligence of the plaintiff himself, and by the acts and conduct on the plaintiff's part which this defendant did not and could not foresee.

And for a supplemental answer the defendant alleges that it entered into a contract with said W. H. Lawrence containing certain stipulations and covenants, among which is the following, to wit: 'The subscriber agrees to comply with the rules, regulations, and other provisions of the company printed on this contract.' That among the rules and regulations and provisions printed upon said contract is the following, to wit: 'This company shall not be liable in any event for damage to person or property arising, accruing, or resulting from the use of light.' That said contract was signed by said Lawrence on April 16, 1898, and was accepted by the defendant company, and that if any injury was sustained as in said complaint alleged, or otherwise, said injury arose, accrued, and resulted from the use of light, and not otherwise, and was due wholly to the negligent and reckless manner in which plaintiff used or attempted to use said light. And defendant alleges that, by virtue of the facts above set forth, the defendant company was released from all liability for injury to this plaintiff arising from the use of light in the premises occupied by said Lawrence.

The jury returned a verdict in favor of the plaintiff in the sum of $5,000, and judgment was rendered upon the verdict. The company appeals. It complains that the court erred in the various stages of the cause, and has specified 101 instances in which it is claimed the court committed error. The ruling of the court upon the demurrer is mainly relied upon to reverse the judgment. It is said that the complaint does not allege negligence or failure to exercise reasonable care in providing and maintaining good, reliable, and efficient appliances for the generation and distribution of electricity to its patrons. That the theory of the plaintiff in preparing the case was that the defendant was bound to furnish an absolutely safe plant and appliances--that the defendant was an insurer of its patrons against injury. That the obligation which the law imposes upon the defendant is that of using ordinary care in the operation of its plant, and not that of an insurer. The question of the sufficiency of the complaint was also raised by objections to testimony.

Thomas, Bryant & Lee, for appellant.

James H. Brown and Andrew W. Gillette, for appellee.

STEELE, J. (after stating the facts).

The complaint alleges that the defendant, at the time the plaintiff received the injuries, was the owner of and in the exclusive operation and management of an electric light plant in the city of Denver for the generation and distribution of electricity for light among and to the general public and residents of the city of Denver, and was engaged in the business of selling and supplying electricity to the general public; that the defendant was furnishing electricity for lighting purposes to the father of the plaintiff, at his residence in the city of Denver; that the plaintiff was residing with his father, and was a member of the family, at the time he received the injuries; that it was and is the duty of the defendant to at all times have and maintain a sound and safe plant, machinery, appliances, etc., and to inspect and examine the same from time to time, and to keep the same in good and safe condition, so that its patrons might safely use electricity; that the defendant...