Drimel v. Union Power Co.

• Decision Date: 04 January 1918
• Docket Number: No. 20638.,20638.
• Citation: 139 Minn. 122,165 N.W. 1058
• Parties: DRIMEL v. UNION POWER CO. et al.
• Court: Minnesota Supreme Court

139 Minn. 122

165 N.W. 1058

DRIMEL

v.UNION POWER CO. et al.

No. 20638.

Supreme Court of Minnesota.

Jan. 4, 1918.

Appeal from District Court, Stearns County; C. A. Nye, Judge.

Action by Alois Drimel, as administrator, against the Union Power Company and others. Verdict for plaintiff, and from an order denying an alternative motion for judgment or a new trial, defendants appeal. Order affirmed.

Syllabus by the Court

The plaintiff's intestate, a child between 5 and 6 years old, was killed by coming in contact with a wire of a fence which had been electrified by a live wire of the defendant, on one of its transmission lines, which broke and fell upon it. The wire broke at 4:30 in the morning and the plaintiff's intestate was killed about 8:30. Assuming that the break was caused by lightning, and therefore that the defendant was not responsible for it, it was a question of fact for the jury whether the defendant, having notice at 4:30, by means of instruments in its plant provided for such purpose, of disturbances on its line, and of the probable breaking of two wires, was negligent in failing sooner to locate the break and prevent harm coming from it.

There was no error in not charging that the break was caused by lightning.

The general charge embodied the substance of the one requested by the defendant as to when it received actual notice of the break, and there was no error in its refusal.

The evidence did not show, as a matter of law, that the parents of the child, who are the sole beneficiaries of this action, were negligent.

The verdict was for $4,000 and was reduced by the trial court to $3,400. It is held not excessive. J. D. Sullivan and Joseph B. Himsl, both of St. Cloud, for appellants.

Donohue & Stephens, of Melrose, and J. J. Quigley, of St. Cloud, for respondent.

DIBELL, C.

Action to recover for death by wrongful act. There was a verdict for the plaintiff. The defendant appeals from the order denying its alternative motion for judgment or a new trial.

[1] 1. The defendant operates an electric light and power plant at St. Cloud. One transmission line extends to the southwest through the village of Richmond 20 miles away. The current is carried on overhead wires along public highways. The line has three wires and carries a 16,500 voltage. In the early morning of July 25, 1916, one of the wires near Richmond broke. One end fell across a wire fence along the road and electrified the wires. The current followed a cross fence leading from the road fence, and at a distance of some 2,000 feet from the break the daughter of the plaintiff, between 5 and 6 years old, came in contact with a wire several hours later and was electrocuted.

There was evidence that the break was caused by a bolt of lightning. If so the defendant, if there was no accompanying or subsequent negligence on its part, was not liable. Assuming that the lightning caused the break the plaintiff claims that the defendant was negligent in not sooner locating the break and taking such action as would have prevented the killing of the child.

In the power plant was an instrument called a current breaker. At 4:30 in the morning it ‘threw out.’ This indicated a serious disturbance on the line. To those experienced in electrical plants it meant that there were likely two wires down. One down wire might but usually would not bring this result. The night operator telephoned the superintendent. He at once took his automobile, got two linemen, and started in search of the trouble. He went along the line several miles until he came to the branch going north to St. Joe. He followed the branch until he found a wire down and a resultant ground a mile south of the village. He repaired it and returned to St. Cloud about 7:30 and went about other work, first sending two men with an automobile to the west to patrol the line, that is, to go along the line and look for trouble. There had been an electrical storm the night before and it was customary to patrol after such a storm. There was no such active search maintained for a down wire as resulted in the discovery of the one near St. Joe. The voltmeter and other instruments in the plant continued to warn of disturbances on the line. At about 8:50 the company's representative at Richmond, having been informed of the ground a short distance out, telephoned the plant and the current was at once turned off. This was shortly after the girl was killed. It was the opinion of the defendant's experts that the Richmond wire and the St. Joe wire were down at 4:30 and caused the current breaker to throw out at that time. Just what information the night operator gave the superintendent is not shown. It is not important. Whatever information the current breaker disclosed the company had. This information suggested two down wires at 4:30. The search resulted in finding one near St. Joe. It was not continued with the same active diligence. The principle of law applicable is not in doubt. The company was not an insurer. The measure of its duty was the exercise of ordinary care. It was using a dangerous agency. If not controlled and guarded it might do great injury. The amount of care required to constitute ordinary care under such circumstances is care commensurate with reasonably apprehended dangers and risks. Musolf v. Duluth Edison Electric Co., 108 Minn. 369, 122 N. W. 499,24 L. R. A. (N. S.) 451; Gilbert v. Duluth General Electric...