Hayden v. Carey
| Decision Date | 13 November 1923 |
| Citation | 196 N.W. 218,182 Wis. 530 |
| Parties | HAYDEN v. CAREY. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Kenosha County; E. B. Belden, Judge.
Action by John Hayden against Walter Carey, a sole trader, doing business as the Carey Electric & Milling Company. Judgment of dismissal, and plaintiff appeals. Reversed and remanded, with directions to enter judgment for plaintiff.
This is an appeal by the plaintiff from a judgment in a personal injury action, dismissing plaintiff's complaint with costs.
In the year 1915 the defendant constructed his lighting plant at the village of Wilmot, Kenosha county, and a distribution primary electric line designed to carry 2,300 volts from Wilmot to the village of Salem, a distance of about eight miles. About three miles north of Wilmot is located the so-called Camp Lake Hotel, a summer resort, and between the hotel and the lake there is a highway running north and south, and outside of the traveled portion of the highway, towards the east, the defendant constructed and maintained his poles and wires. The poles were set between 125 and 130 feet apart, were about 25 feet in length, being imbedded 5 feet in the ground, leaving about 20 feet above the surface, and on the cross-arms attached to the top of the poles and between 24 and 28 inches apart, the two electric wires, made of what is known as No. 8 wire, uninsulated, were stretched. Not far from the hotel, and 22 feet northeast of the nearest electric light pole, and 15 feet east of the wires, was located an apple tree 25 to 30 feet in height.
On the day of the accident, being the 7th of July, 1921, there were a number of heavy wind, rain, and electrical storms. The rain began to fall in the morning and continued intermittently until about 1 o'clock, at which time the storm became very violent, uprooting trees and breaking down branches. Between 2 and 3:30 o'clock p. m. the storm had largely subsided, and the rainfall ceased. Between about 3:30 and 4:30 o'clock p. m. it again resumed considerable violence, being cyclonic in its nature. At about 2 o'clock in the afternoon it was observed that the apple tree above referred to had been broken down, so that the trunk laid on the ground in an easterly and westerly direction. Between the fallen tree and the nearest electric light pole were located a number of branches which evidently had been broken down by the storm.
Plaintiff at the time of the accident had been employed in and about the hotel as a general laborer, and upon the cessation of the storm, between 4:30 and 5 o'clock p. m., he, together with one Bruel, contemplated removing the débris and broken branches and trees, and at the time of the happening of the injury was in the act of removing some of the branches located between the fallen apple tree and the nearest electric light pole, and while so engaged his hand came in contact with a live electric wire which had been broken down, resulting in severe personal injuries. It also appears that after the accident one end of the broken down wire was found suspended along the side of the pole. There is no direct evidence in the case fixing the exact time when the wire was broken, nor was it established by the evidence of an eyewitness what caused the wire to break.
Plaintiff had but little knowledge of electricity, and was unfamiliar with electrical apparatuses and appliances, and his only experience with electric light wires was obtained in performing ordinary labor under the directions of a superior in connecting the hotel wth the transformers on the main line.
The line in question was constructed by the defendant, with the aid of an expert, and proper authority for its construction was first obtained from the Railroad Commission, which body also, as it appears, approved of the equipment and the method of construction. The evidence further shows that from the time of the construction of the line up to the time of the happening of the accident the line was maintained and operated substantially in its original form.
There was considerable evidence introduced on the trial for the purpose of showing that the line was not properly constructed and maintained, and, among other things, it was attempted to show that the defendant failed to erect and maintain a ground detector at Wilmot; that the poles in the vicinity of where the accident happened were not of sufficient height and were set too far apart; that the electric light wires were not insulated; that the branches of the apple tree had not sufficient clearance from the wires; that the wires themselves were not set far enough apart; that there were no signs indicating danger or high voltage, and no guards on the poles; that there were no distinguishing marks on the poles to differentiate them from telephone poles; that while there were five lines emanating from the power station, only one of them was supplied with a so-called circuit breaker; and that such equipment was insufficient to properly indicate trouble on the lines.
The case was submitted to the jury upon a special verdict, the questions and answers being as follows:
“Ques. 1. Did the defendant fail to use ordinary care in the--
(a) Construction of his line? Ans.
(b) Operation of his line? Ans.
(c) Maintenance of his line? Ans. Yes.
(d) Care of his line? Ans.
Ques. 2. If you answer either a, b, c, or d of question 1, ‘Yes,’ then answer this question: Was such failure to use ordinary care the proximate cause of plaintiff's injuries? Ans. Yes.
Ques. 3. Did any want of ordinary care on the part of the plaintiff proximately contribute to cause his injuries? Ans. No.
Ques. 4. What sum of money will reasonably compensate the plaintiff for his injuries in question? Ans. $4,000.”
Upon the rendition of the verdict the plaintiff moved for judgment thereon, and the defendant moved to change the answers of the jury to the questions of the special verdict and for judgment upon the answers as so changed, and also for judgment notwithstanding the verdict. Thereupon the court rendered the following decision:
“It was my opinion at the conclusion of the trial, and now is, that the evidence does not justify the finding that the defendant is chargeable with any neglect of duty causing plaintiff's injury as a natural and probable result under such circumstances that the defendant as a person of ordinary intelligence and prudence ought reasonably to have anticipated injury to another in consequence thereof. * * * ”
Plaintiff's motion for judgment was thereupon denied, and on motion of the defendant judgment was ordered in his favor, dismissing plaintiff's complaint with costs; and upon the entry of such judgment this appeal was taken. Further facts will appear in the opinion.Quarles, Spence & Quarles, of Milwaukee (Arthur B. Doe and Kenneth P. Grubb...
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