Graham v. City of Lincoln

• Citation: 183 N.W. 569,106 Neb. 305
• Decision Date: 23 June 1921
• Docket Number: 21431
• Parties: ELIZABETH H. GRAHAM, ADMINISTRATRIX, APPELLEE AND CROSS-APPELLEE, v. CITY OF LINCOLN, APPELLANT AND CROSS-APPELLEE: LINCOLN TELEPHONE & TELEGRAPH COMPANY, APPELLEE AND CROSS-APPELLANT
• Court: Supreme Court of Nebraska

183 N.W. 569

106 Neb. 305

ELIZABETH H. GRAHAM, ADMINISTRATRIX, APPELLEE AND CROSS-APPELLEE, v. CITY OF LINCOLN, APPELLANT AND CROSS-APPELLEE: LINCOLN TELEPHONE & TELEGRAPH COMPANY, APPELLEE AND CROSS-APPELLANT

No. 21431

Supreme Court of Nebraska

June 23, 1921

APPEAL from the district court for Lancaster county: FREDERICK E SHEPHERD, JUDGE. Affirmed.

AFFIRMED.

C Petrus Peterson, Charles R. Wilke and R. A. Boehmer, for appellant.

Hall Baird & Williams, G. W. Berge and J. S. McCarty, contra.

Heard before MORRISSEY, C.J., DAY, DEAN and LETTON, JJ.

OPINION

LETTON, J.

The plaintiff is the widow of one Roy C. Graham, who was fatally injured while in the employment of the Lincoln Telephone & Telegraph Company. She was appointed administratrix of his estate, and filed with the compensation commissioner a claim for compensation from the company for the death of her husband. From the award in her favor the company appealed to the district court, where judgment was rendered against it for $ 550, weekly payments past due, and for the further sum of $ 12 a week for 325 consecutive weeks thereafter; $ 150 of the award, however, being a penalty for delinquency in making payments. She afterwards commenced this action against the city of Lincoln on the ground that by its negligence it had caused the death of her husband. She made the telephone company a party so that it might be reimbursed for any amount it might pay the plaintiff under the workmen's compensation act, except the penalty. The telephone company filed an answer praying it might be subrogated to any judgment against the city to the extent that it was liable under the workmen's compensation act. The jury returned a verdict against the city in the sum of $ 13,000, and it has appealed. No verdict was rendered as to the telephone company, but it is not here complaining of this; apparently plaintiff and that company having come to an agreement.

Two points are relied upon: First, that the verdict and judgment are not sustained by the evidence. Second, that the court erred in failing to instruct the jury that if they should find against the city they should deduct from the amount of her recovery the amount she had already obtained in judgment against the telephone company, less the $ 150 penalty.

In addition to the general verdict, the jury made a special finding to the effect that the accident resulted "solely from the joint negligence of the defendant city and the defendant telephone company," and upon this finding the city bases its contention as to error in failing to instruct.

On the day of the accident a two-story house being moved on Q street was in the intersection of Eighteenth and Q streets. The peak of the house extended east and west, with the roofing sloping north and south at about 45 degrees. A telephone cable and three secondary and two primary electric wires belonging to the city crossed the street and hung so low that it was necessary for the men on the roof to raise them to enable the house to pass under. A permit had been obtained from the city to move the house, and on the day of the accident the city sent two of its men to assist. The primary wires carried between 4,000 and 4,400 volts, and the secondary wires 110 volts. The insulation was insufficient to protect against that voltage. It would have probably taken 10-minutes time to disconnect the primary wires. Deceased, a lineman and a foreman were sent by the telephone company to raise the telephone cable. Some conversation was had with the electricians for the city, one of whom said he would pull the fuse. He climbed a pole and pulled the fuses, but those pulled were on the secondary circuit. This did not affect the wires carrying the 4,400-volt current. When the men were on the roof, one of the city employees directed the work. The house had passed to the eastward so far that the wires were nearly clear, when there was a flash of flame just above the head of the deceased, and he fell backwards from the roof to the ground. At the same time an employee of the city also received a severe electric shock, but was not killed.

Defendant argues that, since there is testimony in the record that lineman are accustomed to handling wires carrying 4,400 voltage on dry roofs of buildings with their bare hands, or with their hands clad in the kind of gloves which they used for ordinary work, there is no negligence proved on the part of the city in failing to furnish complete insulation, or in failing to shut off the current while the men were at work upon the roof; that the circuit must have been closed by the contact of the deceased in some way, either with the...