Eaton v. Consumers' Power Co., 94.

• Decision Date: 04 January 1932
• Docket Number: No. 94.,94.
• Citation: 240 N.W. 24,256 Mich. 549
• Parties: EATON v. CONSUMERS' POWER CO.
• Court: Michigan Supreme Court

256 Mich. 549

240 N.W. 24

EATON

v.CONSUMERS' POWER CO.

No. 94.

Supreme Court of Michigan.

Jan. 4, 1932.

Appeal from Circuit Court, Genesee County; Paul V. Gadola, Judge.

Action by W. Howard Eaton against the Consumers' Power Company. Judgment for plaintiff, and defendant appeals.

Reversed, and a new trial granted.

Argued before the Entire Bench.

Carton, Gault & Parker, of Flint, for appellant.

Brownell & Gault, of Flint, for appellee.

McDONALD, J.

This is an appeal from the Genesee circuit court where, in an action to recover damages for personal injuries, judgment was entered for the plaintiff on a verdict for $5,000.

The defendant owns a power line along a highway east of the city of Flint, Mich. At the point of the accident, it stretched three electric wires from a pole on the north side of the highway to a residence on the south side. The plaintiff was driving a truck load of baled hay. As he passed under the wires, one of them caught on the top of the load, broke loose, and struck him in the face, causing severe injuries which resulted in the loss of the sight of one of his eyes. He brought suit for damages, charging negligence in erecting and maintaining the wires. On the trial the defendant rested at the close of the plaintiff's case after moving for a directed verdict on the ground that the plaintiff was guilty of contributory negligence, and that there was no evidence of negligence on its part. Decision was reserved, and, after verdict, the court refused a motion to enter judgment non obstante veredicto. A judgment was entered on the verdict. The defendant has appealed.

The statute, section 4056, Compiled Laws of 1929, provides that, ‘* * * in no case shall any wires, cables or other fixtures be placed, or be permitted to remain, at less height than fifteen (15) feet above any part of the traveled portion of the road.’

The negligence complained of was that the defendant either originally placed these wires too low or that due to its negligence the wire which produced the injury became too low, and was permitted to remain so in violation of the statute.

There is no direct evidence of want of care on the part of the defendant. If negligence is found, it must be on presumption arising from the conditions and circumstances attending the accident. The rule of res ipsa loquitur is not recognized in this state; so the mere fact that the accident happened is no evidence of negligence. But the plaintiff is not restricted to direct evidence. A want of care may be presumed from established facts and circumstances. In Barnowsky v. Helson, 89 Mich. 523, 50 N. W. 989,15 L. R. A. 33, it was said: ‘It is true that the mere fact of an injury does not impute negligence on the part of any one, but where a thing happens which would not ordinarily have occurred if due care had been used, the fact of such happening raises a presumption of negligence in some one.’

In the instant case, the question is whether the record shows facts or circumstances of a nature to raise a presumption that the accident would not have happened save for the want of care on the part of the defendant. Such a presumption would make a prima facie case for the plaintiff. It is undisputed that the plaintiff's load of hay was within the statutory height, and, if the wire had been fifteen feet above the traveled portion of the road, the accident could not have occurred. But there is no evidence either direct or circumstantial that the wires were not originally placed at the proper height. Only one of them sagged and fell. The evidence shows that they were all about the same height before the accident, and that the other two were in their original position afterwards. It would have been an easy matter for the plaintiff to have measured them and have given the jury direct evidence as to their height. This he did not do, and, as there are no circumstances from which it could be inferred that they were not originally placed at the height required by the statute, the question as to whether the defendant was negligent in that respect ought not to have been submitted to the jury. But it is undisputed that one of the wires had sagged to such an extent that it was three feet lower than the other wires at the time of the accident. As this wire caused the accident, there was actionable negligence if it sagged because of defendant's carelessness in originally fastening it or if its fastening became loose and could have been discovered by reasonable inspection in time to avert the injury. There is no other apparent cause for its condition at the time of the accident. Could the jury fairly infer from all of the circumstances that the wire would not have sagged to such an extent except for the negligence of the defendant in fastening it and maintaining it in that condition by proper inspection? They would have the right to consider that the evidence showed no other possible cause.

Other possible causes might be the force of some outside agencies as storms, high winds, snow and sleet, or the interference by persons. The accident happened in June. It was shown that there had been no windstorms; and there could have been no interference by persons with the pole or fastenings, because the fastenings were high above the...