Duncan v. Ft. Dodge Gas & Elec. Co.
| Decision Date | 23 June 1922 |
| Docket Number | 34205 |
| Parties | THOMAS R. DUNCAN, Administrator, Appellee, v. FORT DODGE GAS & ELECTRIC COMPANY, Appellant |
| Court | Iowa Supreme Court |
Appeal from Webster District Court.--H. E. FRY, Judge.
ACTION at law, to recover damages for the death of Ora Duncan. Verdict and judgment for plaintiff, and defendant appeals.
Affirmed.
Healy & Breen, for appellant.
Kelleher Hanson & Mitchell, for appellee.
FAVILLE, J., takes no part.
The plaintiff's intestate, Ora Duncan, a young man of 21 years of age, died in the city of Fort Dodge, Iowa, under circumstances as follows: Deceased was in the employ of the Fort Dodge Creamery Company, and as such was charged with the duty of delivering ice cream to the company's customers in that city. Among the customers so supplied were Merrill & Brown, proprietors of a business occupying a room or place in the front part of a large building known as the Wahkonsa Hotel. The room fronted north on the principal street of the city. In the northwest corner of the room was a soda fountain. Extending southward from the fountain were a front and a back bar. Under the front bar, at its south end, were containers supplied with ice, surrounding cans holding the cream. On the bar was an electric fan. The electric current to the fan was supplied through a cord or insulated wire extension from a socket at the south end of the bar, and along its surface. The fan was not fastened to the bar, and could be moved about within the length of the cord. It was the custom of the deceased to deliver ice cream to Merrill & Brown at this store every morning during the summer months. Pursuant to this custom, the deceased delivered a supply of ice cream to the Merrill & Brown store on July 24, 1916, and according to his usage, undertook to pack the containers holding the cream with cracked ice and salt. The electric fan was running, and the cord was lying on the bar in the usual way, and hanging down in front of the containers. There were several persons in the room, though no one appears to have been giving particular attention to Duncan's movements. He was seen to come in from the front, with a pail of ice and a smaller receptacle of salt. He appears to have faced the bar under which the cream was kept, and it is inferable that he took hold of the fan to move it aside and proceed with the packing, when an employee of the store heard a short cry or exclamation, and looking, saw Duncan leaning against or over the back bar, holding the electric fan in his right hand. The witness, believing that the young man was suffering from electric shock, at once unscrewed the plug in which the fan cord was inserted, thereby releasing the current, if any, in the fan. When this release was accomplished, Duncan began to fall or crumple down, and was dragged away from the bar. He did not speak, but gave utterance to a groan. A physician was immediately called. The arrival of the doctor was not immediate, but not long delayed, and he found the young man in a dying condition, or already dead. Resort was had to the use of a pulmotor and other restorative efforts, but without avail. Deceased had been in apparently vigorous health, and there is no evidence tending to show anything abnormal in his physical condition up to the time of his collapse. The electricity operating the fan was derived from a connection with the electric system maintained by the defendant company.
It is the plaintiff's theory that Duncan's death was caused by an electric shock, and that such shock could not have been produced except by some defect in the management or control of the primary current whereby the secondary wiring through which power to the fan was supplied had become overcharged with an excessive and dangerous voltage. It is claimed by the plaintiff, and there is evidence tending to show, that, under normal conditions, with a secondary system of wiring properly installed and maintained, the current delivered to the fan would be not to exceed about 110 volts; and that such current is not of a dangerous character; and that, if such secondary system is properly installed and maintained, it will not become overcharged with a dangerous voltage, except by some fault in the primary or high-tension system or in the transformer through which a modified or milder current is supplied for ordinary uses of the company's patrons.
The defendant, on the other hand, challenges the proposition that deceased died from electric shock, and insists that, even if it be found that he died from electric shock, there is no evidence that such injury was caused by any negligence on its part. Bearing upon these issues, a large volume of testimony is offered on either side. It would serve no useful purpose, and would require an opinion of tedious length, to enter upon a review of the testimony of the individual witnesses; and we shall not enter that field, except as occasion may arise therefor to render clear our views upon the more important questions raised by counsel in argument.
I. Turning first to the inquiry whether there is evidence to justify a finding that deceased died from electric shock, we regard it as clear that such conclusion has sufficient support in the record. No other reasonable theory of the death is advanced. Except for the appellant's insistence that there was no overload or dangerous current upon the wire supplying electricity to the fan, all the circumstances attending the tragic ending of the young man's life, as detailed by all the witnesses on both sides who were present and speak from personal observation, are consistent with plaintiff's theory in this respect. There was a current of electricity of some degree of strength upon the wire; the hand of the deceased clasped or rested upon the fan; with that grasp, his form became rigid, his tongue became speechless; upon the release of the current, the tension of his muscles relaxed, and he began to slide or crumple toward the floor; there was testimony tending to show an electric burn upon his hand, and also that his dead body exhibited the appearance characteristic of those who have been killed by electric shock. All these things, coupled with an affirmative showing that the deceased, up to that moment, exhibited all the appearance of unimpaired health, and the entire absence of evidence of death from any other cause, make up a state of circumstances which forbids us to hold, as a matter of law, that death by electric shock was not established.
II. If, as we hold, the fact of death by electric shock be supported by evidence warranting its submission to the jury, we have next to inquire whether the charge of negligence made in the petition has any substantial support in the record. To answer this intelligently and fairly necessitates consideration of the time, place, and circumstances attending the death of the intestate. The defendant was engaged in the maintenance and operation of an electric plant, and delivering the current to its patrons for lighting and power purposes. In practical operation, the business involves the use of primary wires, carrying a high tension of electricity from the central plant to various parts of the territory served, and of a so-called secondary system, made up of the wiring and other equipment installed in the buildings, shops, and business places to which the current is supplied for the use of the company's patrons. The connection between the primary and secondary wires is regulated and controlled by transformers and other like devices, by means of which only so much of the current is taken off the primary wires as is needed by the individual customer. For ordinary uses, such as the maintenance of lights or the operation of small motors, a comparatively light voltage is required, and its use is not ordinarily regarded as dangerous. The primary wires, carrying a high voltage, and the transformers and other devices controlling the current from such wires are furnished by the company, and are subject to its exclusive charge and control. The secondary wires and equipment are generally put in or paid for by the company's patrons. For any neglect in the construction, maintenance, or operation of the primary system, the company, ordinarily speaking, is alone liable; but for injury or loss resulting from the neglect of the individual customer in installing, maintaining, or operating the secondary system, the company is ordinarily not liable. If, however, injury is sustained by reason of an excessive current negligently allowed to pass through the transformer or otherwise negligently allowed to escape from the primary wires and to overcharge the secondary system, the company is liable therefor. Witmer v. Buffalo & N. F. Elec. L. & P. Co., 187 N.Y. 572 (98 N.Y.S. 781); Crowe v. Nanticoke Lt. Co., 209 Pa. 580 (58 A. 1071); Gilbert v. Duluth Gen. Elec. Co., 93 Minn. 99 (100 N.W. 653); Denver Cons. Elec. Co. v. Lawrence, 31 Colo. 301 (73 P. 39); Bice v. Wheeling Elec. Co., 62 W.Va. 685 (59 S.E. 626); Ohrstrom v. City of Tacoma, 57 Wash. 121 (106 P. 629); Denson v. Georgia R. & Elec. Co., 135 Ga. 132 (68 S.E. 1113).
To negative any inference that the overcharge of electricity, if any, upon the fan or upon the wire attached thereto was the result of any fault or defect in the secondary wiring plaintiff offered considerable testimony fairly tending to show that it was in good order, and without a defect to which the excess of current, if any, could reasonably be attributed. It is not required that such showing should be of a conclusive character. The evidence tends to show, and witnesses for the defense seem to agree, that, if there was a dangerous overcharge of...
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