Gleason v. Missouri River Power Co.

• Decision Date: 29 October 1910
• Parties: GLEASON v. MISSOURI RIVER POWER CO. et al.
• Court: Montana Supreme Court

112 P. 394

42 Mont. 238

GLEASON v. MISSOURI RIVER POWER CO. et al.

Supreme Court of Montana

October 29, 1910

Appeal from District Court, Silver Bow County; Jeremiah J. Lynch Judge.

Action by Edwin C. Gleason against the Missouri River Power Company and another. From a judgment for plaintiff and an order denying a motion for a new trial, defendants appeal. Reversed and remanded for new trial.

Wm Wallace, Jr., John G. Brown, and R. F. Gaines, for appellants.

Maury & Templeman and J. O. Davies, for respondent.

SMITH J.

The complaint in this action, after alleging the corporate character of the Missouri River Power Company, reads as follows: "That on the 5th day of August, 1907, and for some weeks previous thereto and for some weeks thereafter the company had placed in complete and absolute control of its power station, near the High Ore mine in Silver Bow county, the defendant S. L. Case. At the times in this paragraph mentioned he was the superintendent over all the men working for the company in and about the said power station and in and over and about the lines carrying electric current for the company to its patrons in the city of Butte from the said power station: that on August 5, 1907, this plaintiff by the mutual agreement of himself with the company was the servant of the company, employed by the company, and engaged by the company to do line work. On the said 5th day of August 1907, the said S. L. Case negligently gave to this plaintiff a negligent order, and negligently ordered the plaintiff to do certain work of great danger to the plaintiff, and the plaintiff obeyed said order, and was greatly injured in consequence thereof, partly, but also greatly injured in consequence of the negligence of the company hereinafter set out. The two negligent acts, to wit, that of the defendant Case, and also that of the defendant company, concurred to produce the injury hereinafter set out, and each was a direct and a proximate cause thereof. The negligence of defendant Case was as follows: He ordered this plaintiff to work on one of the wires of the defendant company at a point about two blocks east of the Western Iron Works in Silver Bow county. The said wire was represented by the said Case to the said plaintiff to be carrying a current of electricity not in excess of twenty-six hundred and fifty (2,650) volts, and not in excess of sixty (60) amperes, and if this representation had been true the plaintiff would not have been injured, for that the plaintiff would have worked in safety with the methods which he did use to insulate himself on a wire which carried only 60 or less amperes and 2,650 or less volts; but in truth and in fact the said wire was carrying a much larger amperage than 60, to wit, it was carrying an amperage of about 200 amperes. This fact was unknown to the plaintiff, nor could the plaintiff, with due diligence, have ascertained that fact; but this fact was known to the defendant, S. L. Case, or he, by the exercise of reasonable care, could have and would have discovered and known the same. The negligence of the company consisted in that the said wire was designed to carry, and was supposed by plaintiff and the other linemen to carry, and there was being used off of the said wire, a current not in excess of 60 amperes and 2,650 volts, but for a considerable period of time before the 5th day of August, 1907, and on the said day the company had negligently allowed to escape into the said wire, and there was escaping and going through the said wire at the said time, a current equal to 2,650 volts and about 200 amperes. That when the plaintiff went to work at the said point induced by the company and by S. L. Case to believe that there was only a current of 2,650 volts and 60 amperes, he sufficiently and properly and carefully insulated himself for protection against the current which the company and S. L. Case had led him to believe was there; but he was in no wise insulated nor protected from the current which was actually in the said wire as aforesaid, and by reason of the said excessive current, and the said negligent order and plaintiff's careful obedience thereto, the plaintiff was grievously burned by the said current, sufficient in all respects to do great bodily injury to life and limb of men. That by the said burnings, the said defendants did injure the plaintiff's right ear so that he is disfigured for the remainder of his natural life; did burn the plaintiff on his left arm whereby he suffered great pain and injury; did burn the plaintiff for a space of about three inches wide all the way and extending from the wrist almost to the elbow on the right arm; did so burn the plaintiff's right hand that he can never straighten any of the fingers in the right hand save only when the wrist is at one certain angle with the radius and the ulna; and thereby did permanently and for all times render almost worthless the right hand of the plaintiff, and seriously impair his earning capacity in his trade as an electrical appliance worker for the remainder of his natural life. That the plaintiff on the said 5th day of August, 1907, was without negligence on his part and using all care and precaution for his own safety."

A general demurrer to the complaint was interposed and overruled. Thereupon the defendants answered jointly, admitting that Case "was the company's superintendent at its power station near the High Ore mine"; that the plaintiff was in the employ of the defendant corporation, for hire; denying that Case at any time "negligently gave him a negligent order, or negligently or otherwise ordered him to do work of great danger"; admitting that plaintiff "while at work at a point near the Western Iron Works received certain injuries," but denying "that the injuries were due to or occasioned by any negligence or negligent omission on the part of the defendants or either of them." Defendants also alleged affirmatively, as follows: "That the injuries, if any, sustained by the plaintiff were due to and proximately caused by his own contributing fault and carelessness;" and were "due to and caused by dangers, the risk of injury from which plaintiff had theretofore assumed." There was a reply putting in issue the affirmative allegations of the answer. The cause was tried to a jury, which returned a verdict in favor of the plaintiff, and against both defendants, for the sum of $8,000. Judgment was entered for this sum, whereupon the defendants moved for a new trial. The court entered an order denying the motion, on condition that the plaintiff remit $2,000 from the judgment. This he did. The appeals are from the judgment and the order denying a new trial.

Plaintiff testified at the trial: "My position with the company was that of lineman and wireman. On August 4, 1907, I replaced a fuse at a point about two blocks east of the Western Iron Works. I replaced a wire in the place of a fuse at Mr. Case's request. The day before I took a fuse off of there and gave them to him. They had been blown. I presume that excessive current had blown them. I examined one of these fuses about 32 days afterwards, after I was able to go to the place. As to the amperage of the fuse taken out on Sunday, August 4, 1907, I found that the fuse had been reloaded with a wire sufficient to carry 200 amperes. I was sufficiently acquainted with electrical work to know that this fuse carried 200 amperes without breaking down; that much or more. This time, 32 days after I was injured, was the first time I knew they were 200-ampere fuses. On August 5th, between 8 and 9:30 o'clock in the morning, I went to Mr. Case's office, and he said that I should take Mr. Collins over the line and show him our customers. He then told me to go to the place that I had removed the fuses the day before, and put in the wires and take out the wires, and to put fuses back in place of them, to solder a No. 6 wire over the fuse that had been blown, and to put in the same fuse that I had given to him the day before. He told me that the wire was perfectly safe to work on, and that the current did not exceed 60 amperes at any time, and that a 60-ampere fuse would be able to carry it. I went to the place, climbed the pole, took out the wires and replaced fuse No. 1 on the right-hand side, and took my pliers and took told of No. 2 and shoved it in No. 2 fuse box, and then went and took hold of No. 3, and there was an explosion. It blew the fuse. A piece blew out; it burned out in the form of an arc which was caused from exploding the fuse. The arc was so severe it burned my arm and face. At that time the voltage on that line was 2,650. There was no fault to be found with the voltage. At that time a No. 8 wire was carrying that current into the fuse box. A No. 8 wire would carry safely and continuously 60 amperes. It would not carry any more without fusing, not if it was carrying a continuous load. It would not carry 200 amperage. The size of wire which is proper and useful to carry 200 amperage is a No. 00. A No. 8 wire is a great many times smaller than a No. 00. These wires you show me are the three wires that I had put in the fuse block that Mr. Case ordered me to. These wires will carry about 75 amperes without breaking down--without being burned up. They will not carry any more of a continuous current. The pressure on the line was in fact 2,650 volts and 200 amperes. I know that from the fact that it had blown a 200-amperage fuse on the morning previous. My opinion as to the safety or danger of a man working on that pole replacing those fuses on a voltage of 2,650 and an amperage of 200 is that it would be very dangerous and could not be done. Before I saw the explosion and the sheet of flame, I had no knowledge that the wire carried 200 amperes. An arc is an...