Denver Consolidated Electric Co. v. Simpson

• Decision Date: 01 July 1895
• Citation: 41 P. 499,21 Colo. 371
• Parties: DENVER CONSOLIDATED ELECTRIC CO. v. SIMPSON. [1]
• Court: Colorado Supreme Court

41 P. 499

21 Colo. 371

DENVER CONSOLIDATED ELECTRIC CO. v. SIMPSON. ^[1]

Supreme Court of Colorado

July 1, 1895

Appeal from district court, Arapahoe county.

Action by John H. Simpson against the Denver Consolidated Electric Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Wolcott & Vaile and H. F. May, for appellant.

E Caypless, H. N. Sales, and E. Keeler, for appellee.

CAMPBELL, J.

This was an action by the appellee to recover damages for personal injuries. The evidence tends to show that the appellant, for the purpose of furnishing light, was engaged in the business of conveying and distributing electricity throughout the city of Denver by means of wires attached to and suspended from poles placed in the streets and alleys of the city. While the plaintiff was lawfully passing along one of the public alleys in the city, without any fault on his part, he came in contact with one of the defendant's wires, heavily charged with electricity, which wire had become disconnected and detached from its overhead fastening, and was hanging down to within about two feet of the ground in said alley. As the result of such contact, plaintiff received a severe shock from the electricity carried by the wire, and was seriously injured. The negligence charged against the defendant, of which there was some proof, consisted in its failure properly to construct its line, and its omission to take the necessary precautions to prevent the wires from falling and causing injury in case they became detached from their fastenings. There was a verdict for the plaintiff in the sum of $2,800 upon which the court entered judgment, to reverse which the appellant prosecutes this appeal.

The principal errors assigned relate to the overruling by the trial court of the defendant's demurrer to the amended complaint on the ground that it did not state facts sufficient to constitute a cause of action; to the admission of evidence, over the defendant's objection, tending to show that the defendant had notice of this defect in its line in time to make repairs before the accident; to the refusal of the court to submit to the jury, at the request of the defendant, certain questions for their answer; and to the giving of certain instructions by the court, over defendant's objection, defining the duty of the defendant to the traveling public.

The defendant's objection to the sufficiency of the complaint arises out of the supposition indulged in by its counsel that counsel for the plaintiff assumed that the defendant was an absolute insurer of the safety of the public from all danger from its wires, and drew his complaint upon that theory. If such were the fact, the complaint would be bad, for the defendant is not an insurer but, aside from certain allegations found in the complaint which, by themselves alone, might bear such construction, there are specific allegations to the effect that the presence in the alleyway of the wire which caused the injury was due to the negligence of the defendant in omitting to exercise due care in building its line, and culpable negligence in failing to maintain it in good repair. The original complaint contained an allegation that the defendant had notice of this fallen wire in time to repair the defect before the accident, but failed to do so. In the amended complaint this averment was omitted, and therein a general allegation was inserted to the effect that the defendant was negligent, not only in failing to keep its wires in good repair, but was also negligent in constructing the same. Before, or possibly during, the trial, in a conversation between counsel for the plaintiff and the defendant, the counsel for the defendant insists that he was led to believe that no evidence would be offered by the plaintiff tending to show that any notice was given to the defendant of this defect. At the trial, however, the plaintiff did offer testimony as to such notice, which notice was alleged to have been transmitted over the telephone by the witness Hedges to the office of the company, prior to the accident, which evidence the defendant subsequently moved to withdraw from the jury for the reasons above given, and because such evidence tended to prove no issue in the case. We think the defendant was not prejudiced by this evidence. It tended directly to establish the issue of the negligence charged, and there was no attempt by counsel for plaintiff to mislead the defendant, nor is it so claimed by appellant. Besides, while counsel for the defendant may have been, in a sense, surprised by this evidence, yet his affidavit on this point does not point out that he would be able on a new trial to produce evidence from any officer or employé of the company that such notice was not actually received at the office of the company. Had a continuance been granted after this evidence was offered, the defendant claims he would have been able to produce evidence that the record at the police headquarters, where a memorandum of such complaints is kept, would show that no such complaint or notice was sent in on the night in question by the policeman Olsen, who testified that he reported to police headquarters this defect in the wires before the accident occurred. This is no such showing as would warrant the court in granting a new trial on the ground of newly-discovered evidence, nor is it sufficient to warrant us in saying that the court committed error in admitting testimony in regard to the notice.

The defendant requested the court to submit to the jury certain interrogatories, to be answered by them along with their general verdict. These were whether the defendant was guilty of negligence, and, if so, in what particular; at what time the accident occurred; at what time the wire was first down whether the defendant had notice of the fallen wire before the accident, and, if so, how long before; and whether, if the defendant had such notice, it allowed an unreasonable time to pass before the accident without repairing the same. Section 199, Code 1887, provides: 'In any case in which the...