Evansville Gas & Elec. Light Co. v. Robertson

• Decision Date: 31 January 1913
• Docket Number: No. 7,612.,7,612.
• Citation: 55 Ind.App. 353,100 N.E. 689
• Court: Indiana Appellate Court
• Parties: EVANSVILLE GAS & ELECTRIC LIGHT CO. v. ROBERTSON.

55 Ind.App. 353

100 N.E. 689

EVANSVILLE GAS & ELECTRIC LIGHT CO.

v.ROBERTSON.

No. 7,612.¹

Appellate Court of Indiana, Division No. 1.

Jan. 31, 1913.

Appeal from Circuit Court, Gibson County; Oscar M. Welborn, Judge.

Action by Lena Robertson, administratrix, against the Evansville Gas & Electric Light Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Instruction No. 4 was as follows: “(4) The decedent, Robertson, while working for the defendant as its lineman, was not bound, in law, to watch the defendant, or its foreman, and other servants, who were charged with the duty of using ordinary care, to the end that his working place should be maintained in a reasonably safe condition. If this duty existed under the circumstances of this cause, and the decedent knew it, he had a right to rely upon the defendant's discharging the duty; and he was not required to take his attention from his own work in order to see that the duty owing to him by the defendant, if any, was not neglected.”

Elmer E. Stevenson, of Indianapolis, and Iglehart, Taylor & Heilman, of Evansville, for appellant. Philip W. Frey, of Evansville, F. J. Pentecost, of Henderson, and Lucius C. Embree and Morton C. Embree, both of Princeton, for appellee.

SHEA, J.

This was an action by appellee against appellant to recover damages for the death of her deceased husband, Roy R. Robertson, alleged to have been caused by the negligence of appellant.

The complaint was in four paragraphs, to each of which a demurrer for want of facts was overruled. Appellant answered by a general denial. At the close of the evidence appellee dismissed the first, second, and third paragraphs of complaint, and the cause was submitted to a jury on the fourth paragraph. A general verdict was returned in favor of appellee, and judgment rendered on the verdict. Appellant's motion for a new trial was overruled.

The errors assigned are the overruling of the demurrer to the fourth paragraph of complaint and the overruling of appellant's motion for a new trial.

From the complaint it appears, in substance, that appellant was a corporation engaged in furnishing electric light and power by means of electricity to its customers in the city of Evansville, Ind.; that it maintained poles in said city, upon which wires were strung upon crossarms attached thereto, by means of which it distributed electric currents; that said poles are kept in position by means of wire ropes extending from them to guy poles. Appellee's decedent was employed by appellant as a lineman. One pole was located at the corner of Sixth avenue and Franklin street, carrying what is known as a feed wire, charged with a voltage of electricity sufficient, when a circuit was formed, to instantly kill any person coming in contactwith it. Near the opposite corner on which said pole was situated, appellant maintained a guy pole, from which wires were stretched, designed to steady and keep the main pole in an upright position. On June 2, 1906, appellant had in its employ one Dan McDonald, whose duties were to superintend and direct the repair and construction of its poles and lines, and who was authorized to determine when repairs were needed, and to direct the manner in which they should be made. On said day appellant, by said McDonald, determined to strengthen the pole on the corner of Sixth avenue and Franklin street by guying it. Said pole, at that time, carried a feed wire so heavily charged with electricity that to come in contact with it, so as to form a circuit, would destroy human life; and the presence and effect of this feed wire were known to appellant. It was the duty of decedent, under the order of McDonald, to climb said pole and make such tests and attachments thereto as directed by him. Appellant's rules required it to fully protect persons sent upon such poles in the line of their employment; and it therefore undertook to protect and insulate decedent while engaged in his work in such dangerous place. On the day of the accident decedent was directed to go upon the pole, and did, in the line of his duty, climb it to attach a guy wire thereto. In so doing it was necessary for him to be in close proximity to the feed wire. When decedent climbed the pole, McDonald was on the ground, near the foot of it, for the purpose of insulating and protecting him. A guy wire was then sent up to decedent, who, realizing the danger of said feed wire, and relying wholly upon appellant to protect and insulate him in accordance with its rules and practices, undertook to fasten the guy wire to the pole; that appellant negligently failed and refused to insulate or protect decedent, of which failure he had no knowledge or means of knowledge, for the reason that his attention was confined to the work he was engaged in doing, and also because the end of said guy wire, where it was near the ground, was quite a distance from the pole; that appellant negligently failed to insulate the end of said guy wire on or near the ground, and said guy wire, coming in contact with the ground, formed a circuit, when the decedent came in contact with the feed wire, that caused his death. Appellant negligently failed to warn decedent that the guy wire was not properly insulated; that the coming in contact with said feed wire, in the handling of the guy wire, was without fault on the part of decedent; that such contact would not have injured decedent in any manner had said guy wire been properly insulated; that decedent, at the time of his injury, was in the exercise of due care, and did not know, and could not know, that said guy wire, at the time of his injury, was not properly insulated; that decedent would not have gone upon said pole and near said feed wire, except that he believed and relied upon appellant to properly insulate said guy wire, so that a circuit could not be formed with said feed wire; that appellant knew of the presence of the feed wire and the imminent danger to decedent, unless he was fully protected and insulated, but it negligently failed to insulate and protect him; that by reason of appellant's negligence a circuit was formed when the uninsulated end of the guy wire came in contact with the ground at the time decedent's body came in contact with the feed wire, the decedent at that time having hold of the guy wire with his hands, in the line of his duty, and he was instantly killed.

[1] If the complaint in this case contains a general charge of negligence against the master, as a result of which negligence appellee received the injury which resulted in his death, the complaint will withstand a demurrer (Lake Erie, etc., R. Co. v. Moore, 42 Ind. App. 32, 81 N. E. 85, 84 N. E. 506;Indianapolis, etc., Traction Co. v. Newby, 45 Ind. App. 540, 90 N. E. 29, 91 N. E. 36;Princeton Coal, etc., Co. v. Roll, 162 Ind. 115, 66 N. E. 169); and mere recitals and conclusions of the pleader with respect to particular acts will be treated as surplusage. Ochs v. M. J. Carnahan Co., 42 Ind. App. 157, 76 N. E. 788, 80 N. E. 163;Hamilton National Bank v. Nye, 37 Ind. App. 464, 77 N. E. 295, 117 Am. St. Rep. 333; Ralya, Adm'r, v. E. C. Atkins Co., 157 Ind. 331, 61 N. E. 726;City of New Albany v. Armstrong, 22 Ind. App. 15, 53 N. E. 185;Reed v. Tioga Mfg. Co., 66 Ind. 21;Harding v. Third Presbyterian Church, 20 Ind. 71;Domestic Block Coal Co. v. De Armey (No. 22,328, Sup.) 100 N. E. 675.

The complaint in this case very specifically charges that appellee's decedent, in the service of appellant, and in obedience to the order of the foreman under whom he was working, was at work in a place of great and imminent danger, to wit, at the top of a light pole on which there were strung wires carrying heavy currents of electricity, which, if a circuit was formed, would cause instant death to him or any other person coming in contact therewith; that it was the duty of the master to properly insulate decedent while engaged in said dangerous and hazardous employment, and otherwise provide for his safety while so engaged; that appellant knew at the time in question of decedent's great and imminent danger, unless he was fully protected and insulated, but, notwithstanding such knowledge, it negligently failed to insulate and protect him, and by reason thereof a circuit was formed between the feed wire upon the pole upon which he was at work and the guy wire with which he was at work; and that decedent received the full voltage of electricity through his body, causing his instant death.

Appellant ably argues that the allegation in the complaint that “it was necessary for said deceased to be in close proximity to said feed wire” is pleading a conclusion. The allegations of the complaint disclose that appellee's decedent was ordered to do the work in question. It is also alleged that “said pole at that time carried a feed wire that was so heavily charged with electricity that to come in contact with the same so as to form a circuit would destroy human life; that the presence of said feed wire and its effect upon human life was known to the defendant.” It is the opinion of the court that this allegation is sufficiently clear to enable the court to understand that a man who was obliged, in the performance of his duty, to fasten the guy wire to the crossarm, as stated in the complaint, was obliged to be near the feed wire attached thereto.

The demurrer to the fourth paragraph of complaint was properly overruled.

[2] The first reason assigned in support of the motion for a new trial is the error of the court in permitting appellee's counsel, over appellant's objection, in the examination of the jurors as to their qualifications to serve as such, to ask each juror if he was either a stockholder, officer, employé, or agent of the Frankfort Marine & Accident Insurance Company, “which has issued a policy to the defendant, the Evansville Gas & Electric Light Company, indemnifying it against any loss or damage that it may have to pay by...