Hebert v. Lake Charles Ice, Light & Waterworks Co.

• Decision Date: 16 November 1903
• Docket Number: 14,807
• Citation: 111 La. 522,35 So. 731
• Parties: HEBERT v. LAKE CHARLES ICE, LIGHT & WATERWORKS CO., Limited
• Court: Louisiana Supreme Court

35 So. 731

111 La. 522

HEBERT v. LAKE CHARLES ICE, LIGHT & WATERWORKS CO., Limited

No. 14,807

Supreme Court of Louisiana

November 16, 1903

Rehearing denied January 18, 1904.

Appeal from Fifteenth Judicial District Court, Parish of Calcasieu Edmund Denis Miller, Judge.

Action by Alicia Hebert individually and as tutrix against the Lake Charles Ice, Light & Waterworks Company, Limited. Judgment for plaintiff, and defendant appeals. Modified.

Pujo &amp Moss, for appellant.

McCoy &amp Moss, for appellee.

OPINION

NICHOLLS, C.J.

Statement of the Case.

The plaintiff, in her own behalf, as widow of Rosalie Hebert, and as tutrix of their minor child, seeks to obtain judgment against the defendant for $ 26,031 as damages to herself and to her said child arising from the death of her deceased husband, Rosalie Hebert, occasioned, it is charged, by the fault of the defendant corporation.

She charges that her deceased husband, about 8 o'clock on the evening of December 1, 1901, was standing near the southeast corner of the intersection of Ryan and Mills streets, two public throughfares in the city of Lake Charles, and that a slight wind and rain coming up suddenly caused him to seek shelter under the open shed just north of the building occupied by the Lake Charles Carriage & Implement Company, Limited, at the northwest corner of the intersection of said streets; that the darkness being very great while crossing Ryan street in a northwesterly direction, just as he reached the sidewalk on the west side of said street and in front of said building he came in contact with a wire hanging from an electric light pole and lying along the ground, charged with electricity in a careless and negligent manner, and was instantaneously killed thereby; that said wire was a part of the electric light system owned and operated by the defendant, the Lake Charles Ice, Light & Waterworks Company, and the wire which electrocuted her husband was carrying and charged with a current of electricity generated by said company; that it was at that time in a rotten and decayed condition, and was stripped of insulation to such an extent as to leave it practically bare; that said dangerous and defective condition existed throughout the said electric light system -- all of which were facts well known to defendant corporation and its agents, servants, and employes at that time and long prior thereto; that said corporation had been and was at that time guilty of the grossest negligence, and was actively violating its charter and contract with the city of Lake Charles and the ordinances of said city, in that it had constructed and was then operating and maintaining its electric light plant in a careless, improper, and dangerous manner; that said dangerous and defective condition of said wires and system and the gross negligence of the defendant company as set forth were the direct, proximate and sole causes of the death of her husband, and he was not guilty of any act of contributory negligence.

After so charging, plaintiff made allegations usual to such actions, and prayed for trial by jury and judgment.

Defendant answered, pleading, first, the general issue. It admitted that it was the owner of an electric light system in the city of Lake Charles which it maintained and operated, by means of which it supplied both public and private illumination. It averred that its wires were strung by virtue of the terms of its franchise with the city of Lake Charles, granted in 1891, and its poles located at the direction and under the supervision of the city engineer.

That long after the stringing of its wires at the place designated in plaintiff's petition the Cumberland Telephone & Telegraph Company, in extending its telephone system in the said city, strung its wires at said point above and over those of defendant.

That on the night in question, at the place mentioned in plaintiff's petition, one of the wires was burned in two by coming in contact with a wire of said telephone and telegraph company, which caused the severed ends to fall to the ground. Defendant specially denied that the deceased, Rosalie Hebert, came to his death by electrocution therefrom.

That on the night it was alleged Hebert came to his death there was a severe tornado or cyclonic disturbance in the city of Lake Charles, which resulted in the loosening and unfastening of a great portion of the wires of the telephone and telegraph company's system, one of them falling upon and coming in contact with the smaller wire of defendant, thereby cutting it in two; and, if any one was responsible for the alleged death of said Hebert, it was the Cumberland Telegraph & Telephone Company, and not respondent.

Defendant specially denied that its electric system was in the condition mentioned, but, on the contrary, it averred that its wires were new, properly insulated, and in good condition.

It averred that the claim of the plaintiff was inflated and unfounded in law, even should defendant be responsible, as she sought to recover judgment based upon the earning capacity of the deceased on a life expectancy of 40 years, making no allowance for the loss of a day, or for costs of subsistence, illness, or any of the ordinary, usual, and fixed charges of a life, and to that extent plaintiff was endeavoring to enrich herself at the expense of the defendant company; that plaintiff's claim was extortionate and extravagant, inasmuch as defendant's plant had been recently valued at $ 30,000 by an expert.

That defendant's company officers bore no malice against the deceased, and were not even acquainted with him, and his death, if chargeable to defendant, could not be made the basis for exemplary or punitory damages, which, though not declared upon in plaintiff's petition, apparently constituted the item of damages asked.

That the night when Hebert came to his death was stormy, dangerous, and tempestuous, and, if he was electrocuted in the manner and form charged -- which was specially denied -- his death was due to his own contributory negligence in being out in the streets and moving from place to place under dangerous conditions, which contributory negligence defendant pleaded in bar of the action.

The jury returned a verdict in favor of the plaintiff individually for the sum of $ 4,000 and in her capacity as tutrix for $ 4,000.

The court rendered judgment in conformity to the verdict.

After an unsuccessful application for a new trial, defendant appealed.

Opinion.

There can be, in view of the evidence adduced, no contention as to the fact that the deceased, Rosalie Hebert, came to his death by coming in contact with one of the copper wires attached to defendant's electric plant in the town of Lake Charles, which at the time of his doing so was lying in one of the streets of the town, and charged with electricity generated at defendant's power house, which was sufficient in strength to kill, and which in fact did kill, him. Such a wire of an electric company, detached from the poles, and lying on the streets of a town, is, of course, out of its proper place, and those having control of it and charged with the legal duty of taking due care of it were bound to account for its being found in that condition and situation. See Maus v. Broderick, 51 La.Ann. 1153, 25 So. 977.

The defendant company was not only charged by general law with the duty of seeing that its wires were so placed and so kept as to injure no one, but they were accorded by the town authorities the privilege or right of stringing its wires on its streets upon the express condition that it should use the utmost precautions in this respect. An examination of the issue in this case must commence with the recognition of an absolute duty on the part of the corporation of protection to the public from things belonging to it or in its custody by due care. The obligation we here refer to is especially emphasized in the case of the owners of buildings and in a more general manner referred to in articles 666, 667, and 670 of the Civil Code, and in the legal maxim, "Sic utere."

Plaintiff's counsel contends that, where an individual or a corporation owns and operates an electrical light plant generating a high current of electricity, conveying it by means of overhead wires along the streets of a town or city, and it is shown that a traveler upon one of the streets came in contact with one of its wires lying upon the sidewalk and was killed thereby, he being without contributory negligence, the burden of proof is upon it to show that the wire was without negligence on its part (res ipsa loquitur); and in support of that proposition they refer the court to Boyd v. Portland Electric Co. (Or.) 66 P. 576, 57 L. R. A. 619; Jaggard on Torts (vol. 2) 864; Joyce, Electric Law, § 606; Keasbey, Electric Wires (2d Ed.) § 271; Western Union Telegraph Co. v. State (Md.) 33 A. 763, 31 L. R. A. 572, 51 Am. St. Rep. 464; Haynes v. Raleigh Gas Co. (N. C.) 19 S.E. 344, 26 L. R. A. 810, 41 Am. St. Rep. 786; Denver Consol. Electric Co. v. Simpson (Colo. Sup.) 41 P. 499, 31 L. R. A. 566; Moran v. Steam Engine Co. (R. I.) 43 A. 874, 45 L. R. A. 267; Snyder v. Wheeling Co. (W. Va.) 28 S.E. 733, 39 L. R. A. 499, 64 Am. St. Rep. 922; 21 Am. & Eng. of Law (New Ed.) 512, 513, and notes; Bigelow, Torts, 596; Wharton, Negligence, § 241; Cooley on Torts, 799; Shearman & Redfield, Negligence (5th Ed.) § 60; Clairain v. Telegraph Co., 40 La.Ann. 182, 3 So. 625.

We are of the opinion that this proposition is conservative and correct. The owners of electrical machinery are in a much better position to know and be informed as to its situation when such a condition of things takes place, than would be an entire stranger to its affairs, who, being lawfully upon the...