Griesemer v. Suburban Electric Co.

• Decision Date: 12 April 1909
• Docket Number: 198
• Citation: 73 A. 340,224 Pa. 328
• Parties: Griesemer v. Suburban Electric Company, Appellant
• Court: Pennsylvania Supreme Court

73 A. 340

224 Pa. 328

Griesemer v. Suburban Electric Company, Appellant

No. 198

Supreme Court of Pennsylvania

April 12, 1909

Argued January 20, 1909

Appeal, No. 198, Jan. T., 1908, by defendant, from judgment of C.P. No. 2, Phila. Co., Jan. T., 1908, No. 198, on verdict for plaintiff in case of Sophia Griesemer v. Suburban Electric Company. Affirmed.

Trespass to recover damages for death of plaintiff's husband. Before WILTBANK, J.

The facts are stated in the opinion of the Supreme Court.

Defendant presented these points:

2. The uncontradicted evidence is that the plaintiff's husband had been provided with rubber gloves for the purpose of protecting himself against injury from an electric shock, and that he failed to protect himself at the time of the accident by the use of these rubber gloves; his own negligence therefore, contributed to the accident, and your verdict must be for the defendant. Answer: To which I answer that if you find that the use of these rubber gloves would have been protective under the circumstances, the point should be affirmed. [2]

3. The proximate cause of the death of the plaintiff's husband was his use of an unusual and unsafe method of erecting the trolley pole, and his failure to observe precautions that would have protected him from injury. The defendant was not bound to anticipate that its wires might be disturbed in this manner, and your verdict must be for the defendant. Answer In answer to points I am under the law obliged merely to affirm or deny them without more, and as I cannot affirm this, I decline to charge it. [3]

Verdict and judgment for plaintiff for $5,000. Defendant appealed.

Errors assigned were (1) in refusing defendant's motion for judgment non obstante veredicto; (2, 3) above instructions, quoting them.

The judgment is affirmed.

R. Stuart Smith, with him Charles E. Morgan, for appellant. -- The burden is on the plaintiff to prove some negligent act which was the proximate cause of the injury. The proximate cause of the death of the plaintiff's husband was a combination of circumstances so unusual as to be beyond the contemplation of the defendant, irrespective of the condition of its wires; the use of the sidewalk for a purpose not to be anticipated, the erection of the pole in an improper and unusual manner, and the failure of the plaintiff's husband to use ordinary and available means to protect himself from injury: Douglass v. Mitchell's Executor, 35 Pa. 440; Railway Co. v. Henrice, 92 Pa. 431; Ford v. Anderson, 139 Pa. 261; Mensch v. Penna. R.R. Co., 150 Pa. 598; Brunner v. Blaisdell, 170 Pa. 25; Wood v. Diamond Electric Co., 185 Pa. 529; Elliott v. Allegheny County Light Co., 204 Pa. 568.

The negligence of the plaintiff's husband in failing to protect himself by the use of rubber gloves provided for that purpose contributed to his death, and for that reason the plaintiff cannot recover: Hart v. Allegheny County Light Co., 201 Pa. 234; Moyer v. Metropolitan Electric Co., 14 Pa. Dist. Rep. 798; Haertel v. Penna. Light & Power Co., 219 Pa. 640; Lonzer v. Lehigh Valley Railroad Co., 196 Pa. 610; Dinan v. Supreme Council, 210 Pa. 456; Keiser v. Lehigh Valley Railroad Co., 212 Pa. 409.

J. Edgar Butler, with him Charles F. Warwick, for appellee. -- A duty arose from the circumstance of defendant maintaining on a public street, a trap, consisting of a wire covered with rotten insulation, apparently safe, but in fact deadly, without taking the reasonable precaution of keeping the insulation in good repair, particularly as deceased had no reason to anticipate either that he would be in contact with said wires or that such contact would be harmful: Varnau v. Tel. Co., 5 Lanc. Law Rev. 97; Dillon v. Light Co., 179 Pa. 482; Devlin v. Light Co., 192 Pa. 188; Morgan v. Electric Co., 213 Pa. 151; Electric Light & Power Co. v. Lefevre, 55 S.W. Repr. 396; Fitzgerald v. Edison Electric Illuminating Co., 200 Pa. 540.

The second assignment of error required the court to assume as true testimony which was contradicted. Gloves would not have protected deceased because he embraced the pole and rode on it: Reel v. Elder, 62 Pa. 308; Illingsworth v. Light Co., 161 Mass. 583 (37 N.E. Repr. 778); Thomas v. Wheeling Electrical Co. (W. Va.), 8 Am. Elect. Cases, 528.

The question of notice to defendant of the defective insulation is not before this court. No point requesting the trial judge to charge on said question was presented to the trial judge unless it was the fourth point, the answer to which is not excepted to nor assigned for error. Defendant was bound to keep its insulation perfect, which includes a reasonable inspection. No reasonable inspection would permit an insulation to rot off the wire. Rags hanging from a heavily sagging wire were sufficient notice to one knowing the deadly nature of the wire: Baker v. R.R. Co., 95 Pa. 211; Stoltenberg v. R.R. Co., 165 Pa. 377.

Before MITCHELL, C.J., FELL, BROWN, MESTREZAT, POTTER, ELKIN and STEWART, JJ.

OPINION

MR. JUSTICE FELL:

The plaintiff...