Hodgson v. Wis. Gas & Elec. Co.

• Court: Wisconsin Supreme Court
• Writing for the Court: OWEN
• Citation: Hodgson v. Wis. Gas & Elec. Co., 188 Wis. 341, 206 N.W. 191 (Wis. 1925)
• Decision Date: 08 December 1925
• Parties: HODGSON v. WISCONSIN GAS & ELECTRIC CO.

188 Wis. 341

206 N.W. 191

HODGSON

v.WISCONSIN GAS & ELECTRIC CO.

Supreme Court of Wisconsin.

Dec. 8, 1925.

Appeal from Circuit Court, Milwaukee County; Walter Schinz, Judge.

Action by Harry Hodgson against the Wisconsin Gas & Electric Company. Judgment for plaintiff, and defendant appeals. Affirmed.Shaw, Muskat & Sullivan, of Milwaukee, for appellant.

Quarles, Spence & Quarles, of Milwaukee (Arthur Wickham, of Milwaukee, of counsel), for respondent.

OWEN, J.

This action was brought to recover damages for personal injuries. The plaintiff was a lineman for the Merton Telephone Company. On the 28th day of February, 1922, he was at the top of a telephone pole repairing a wire. At this point the power line of the defendant ran above the telephone line. There was a clearance of 28 inches between the wires of the two lines. The plaintiff maintained his position on top of the pole by means of a supporting belt. The wire which he was splicing or repairing was on his right side. After the wire was repaired, he lifted it and transferred it over his head to his left side, where it was to be placed in position. In so transferring the wire his hand came in contact with the live wire of the defendant's line, causing him serious injury.

The jury found negligence on the part of the defendant in its failure to maintain its wires more than 28 inches from the wires of the telephone company and in its failure to maintain a warning on or near the poles at the point in question, which negligence constituted the proximate cause of the injury. It found that there was no want of ordinary care on the part of the plaintiff contributing to the injury. From a judgment rendered in favor of the plaintiff the defendant appeals.

The only contention on the part of the appellant is that the plaintiff was guilty of contributory negligence as a matter of law, in support of which contention it relies upon Huber v. La Crosse City Railway Co., 92 Wis. 636, 66 N. W. 708, 31 L. R. A. 583, 53 Am. St. Rep. 940;Billington v. Eastern Wis. R. & T. Co., 137 Wis. 416, 119 N. W. 127;Glander v. Milwaukee E. R. & L. Co., 155 Wis. 381, 144 N. W. 972;Wilger v. Wisconsin Traction, Light, Heat & Power Co., 160 Wis. 654, 152 N. W. 414. While there is language used in the case of Huber v. La Crosse City R. Co., 92 Wis. 636, 66 N. W. 708, 31 L. R. A. 583, 53 Am. St. Rep. 940; which gives some support to appellant's contention, that case did not turn upon the question of plaintiff's contributory negligence. The decision rested upon the fact that there was no negligence on the part of the defendant. In each of the other cases the plaintiffs sustained injuries by coming in contact with an electric wire. To this extent they may be said to be similar to the instant case, but there the similarity ends. In each of those cases the contact with the electric wire on the part of the injured person was the result of a deliberate and intentional act. Furthermore, none of the plaintiffs was engaged in work, the prosecution of which brought them into unconscious contact with the wire. In this case the plaintiff was preoccupied with the task in hand. His attention was upon his work, and the movement of his hand which brought it in contact with the wire was to some extent at least an unconscious movement in bringing the wire to its proper position.

[1] The situation of the plaintiff by reason of the fact that he was engaged in work which required his attention plainly distinguishes this case from the cases cited in support of appellant's contention. In those cases there was nothing to distract or divert attention from the dangerous presence of the wire, but, on the contrary, the injured person was in each of those cases deliberately grasping the wire. A person required to work...