Escambia County Elec. Light & Power Co. v. Sutherland

• Decision Date: 18 April 1911
• Citation: 61 Fla. 167,55 So. 83
• Court: Florida Supreme Court
• Parties: ESCAMBIA COUNTY ELECTRIC LIGHT & POWER CO. v. SUTHERLAND.

55 So. 83

61 Fla. 167

ESCAMBIA COUNTY ELECTRIC LIGHT & POWER CO. v. SUTHERLAND.

Florida Supreme Court, Division B.

April 18, 1911

Headnotes Filed May 22, 1911.

Error to Circuit Court, Escambia County; J. Emmet Wolfe, Judge.

Action by Fannie M. Sutherland against the Escambia County Electric Light & Power Company and another. Judgment for plaintiff and the named defendant brings error. Reversed, and new trial awarded.

Syllabus by the Court

SYLLABUS

There is no reversible error in the ruling of the court refusing a motion to strike out or amend a count in a declaration claiming damages for negligent acts of the defendant, when it appears that all the proof adduced by the plaintiff was confined to specific acts of negligence set up in other counts.

In an action by a widow claiming damages for the negligent killing of her husband, no reversible error is committed in permitting the plaintiff to introduce evidence as to the number and ages of the living children, of herself, and her deceased husband.

Where in an action by a widow for the negligent killing of her husband by electricity furnished by defendant, there is some evidence tending to show that the body of the deceased came in contact with an electric current sufficient to cause his death, there was no error committed in permitting the plaintiff to propound to a witness who was a physician who examined the body of deceased this question: 'If it were a fact that just at the time or prior to the death of Sutherland (plaintiff's deceased husband) his body came in contact with an electric wire or apparatus conveying electricity carrying 1,000 volts or 1,500 volts, would that have produced death according to your knowledge of the body and conditions as I have stated?'

The ruling on the subject of hypothetical questions in Baker v. State, 30 Fla. 41, 11 So. 492, cited and approved.

Where there are several instructions upon one proposition, which are not contradictory, and which when construed together fairly state the law on that proposition, no reversible error is shown in an objection to one alone of such instructions.

Corporations act and perform their duties through the agency of their servants and employés. Where it is the duty of a corporation to perform an act, and the authority to do it is imposed on one of its employés, such employé stands in the place of and as a representative of the corporation, and the corporation is responsible for the negligence of the officer or agent charged with the performance of such duty.

To state in one part of a charge to the jury that which makes a company furnishing electricity to its patrons a practical insurer of the safety of those patrons, and to state in another part of the charge that such a company is not an insurer, is to state contradictory or repugnant propositions and such a charge is universally held to contain reversible error, unless the evidence is such that the jury could not have been misled.

A charge should not impose upon a defendant a duty not shown to exist.

Inasmuch as the charge and instructions in this case, as well as the large number of cited cases, show the difficulty of putting into a harmonious formula of words a definition of the duty which an electric company owes its patrons, this court in order to simplify the matter adopts the following: 'An electric company furnishing light to its patrons, while not an insurer against all possible accidents to those whose right or duty is to use its electricity, yet is under obligation to do all that human care, vigilance, and foresight can reasonably do, consistent with the practical operation of its plant, to protect such persons.'

Argumentative propositions used by courts in evolving a legal principle should not be given in charge to a jury.

To entitle a plaintiff or party upon whom the burden of proof lies to a verdict, the evidence should preponderate in his favor and produce in the minds of the jury a reasonable belief of the facts essential to the verdict.

A defendant has no right to complain of the language used by the judge in a part of his charge, when the same language occurs in several instructions given at the request of such defendant.

There is no error in refusing an instruction covered by the general charge of the trial court or other instructions.

There is no error in refusing an instruction based on a theory of the evidence, which is not in fact borne out by it.

Where an error has been committed in defining the duty of a defendant electric company to its patrons to be harmless to the defendant, the evidence must be of such a character as would not reasonably have warranted any other than a verdict for the plaintiff.

COUNSEL

Blount & Blount & Carter, for plaintiff in error.

J. P. Stokes and R. P. Reese, for defendant in error.

Fannie M. Sutherland brought a suit at law for damages against the Pensacola Electric Company and the Escambia County Electric Light & Power Company, a corporation, and in March, 1910, filed four amended counts to her declaration. The first two counts are as follows:

'(3) The plaintiff, Fannie M. Sutherland, by her attorneys, sues the defendants, the Pensacola Electric Company, a corporation, and the Escambia County Electric Light & Power Company, a corporation, for that on and before the --- day of September, A. D. 1909, the defendants were possessed of, owned, and operated in the city of Pensacola, Fla., a certain electric power plant, from which they supplied to the public, for hire, electric power for lighting and mechanical purposes; that on and before said date the defendants, for hire, supplied to H. G. De Silva & Co., in said city of Pensacola, electric power by means of a certain wire electic power by means of a certain wire extending from defendants' power plant to the planing mill of said H. G. De Silva & Co., for the purpose of illuminating said mill by and through a certain incandescent light connected with said wire; that on and before said date it became, and was the duty of defendants to connect the aforesaid incandescent light with their main wire extending from their said power plant to said planing mill of H. G. De Silva & Co. by means of a wire properly and securely insulated and to see that said wire was at all times thereafter properly and securely insulated when in use, so that persons who had a right to come in contact with said wire would be protected from the electricity transmitted through said wire to the incandescent light aforesaid, but, notwithstanding their duty in this behalf, the defendants carelessly and negligently allowed said wire to become uninsulated and dangerous to the lives of persons who had a right to come in contact with said wire; that on said date Charles W. Sutherland, plaintiff's lawful husband, who was then and there in performance of his duties as a bricklayer performing certain work for the use and benefit of said H. G. De Silva & Co., came in contact with said wire as he had a right to do, whereby he was severely shocked by the electric current supplied by the defendant in the manner aforesaid, through said wire so negligently and dangerously exposed and uninsulated, from the effects of which he died.

'And plaintiff claims $35,000.

'(4) The plaintiff, Fannie M. Sutherland, by her attorneys, sues the defendant the Escambia County Electric Light & Power Company, a corporation, and the Pensacola Electric Company, a corporation, for that on and before the --- day of September A. D. 1909, the defendants were possessed of, owned, and operated in the city of Pensacola, Fla., a certain electric power plant, from which they supplied to the public, for hire, electric power for lighting and mechanical purposes; that on and before said date the defendants, for hire, supplied to H. G. De Silva & Co., in said city of Pensacola, electric power by means of a certain wire extending from defendants' power plant to the planing mill of said H. G. De Silva & Co., for the purpose of illuminating said mill by and through a certain incandescent light connected with said wire; that on and before said date it became, and was, the duty of defendants to supply said electric power to said H. G. De Silva & Co. in the manner and for the purpose aforesaid in such manner and in such quantity as would be reasonably safe to those persons who had a right to come in contact with said incandescent light, or the wire by which said incandescent light was attached to the main wire as aforesaid, and through which the necessary electricity passed, and to this end it became, and was, the duty of defendants to install a certain transformer in good condition and properly equipped and to keep the same in good condition, and properly equipped for the purpose for which it was installed, at a point on the main wire leading from defendants' power plant to said incandescent light between the point where said main wire led from defendants' said power plant to the point where said main wire entered the plainting mill of said H. G. De Silva & Co., the purpose of which being to reduce the high and dangerous voltage passing from the defendants' power plant by means of said main wire to a lesser and safe voltage, but sufficient in quantity for the purpose hereinbefore mentioned, to the wire leading to the incandescent light aforesaid, and by which said incandescent light was connected with the main wire aforesaid, but, notwithstanding its duty in this behalf, the defendant carelessly and negligently allowed said transformer to become out of good condition and to become improperly equipped for the purpose for which it was installed, and to thereby permit a dangerous and excessive quantity of electricity to pass from defendants' power plant to said incandescent light, and the wire...