Hogge v. Salt Lake & O. Ry. Co.
| Citation | 47 Utah 266,153 P. 585 |
| Decision Date | 24 August 1915 |
| Docket Number | 2710 |
| Parties | HOGGE v. SALT LAKE & O. RY. CO. et al |
| Court | Utah Supreme Court |
On Application for Rehearing November 30, 1915.
Appeal from District Court, Second District; Hon. N. J. Harris Judge.
Action by Orenne Hogge, Administratrix, against the Salt Lake & Ogden Railway Company and others.
Judgment for plaintiff for $ 5,000. Defendant named appeals.
AFFIRMED.
Boyd DeVine & Eccles, for appellant.
C. R. Hollingsworth and H. H. Henderson, for respondent.
RESPONDENT'S POINTS.
The land owner is responsible to invites upon the premises who suffer injuries from a nuisance created or a hidden and concealed danger maintained on his premises, when that result was reasonably to be apprehended from the usual and ordinary method of doing the work contracted for. (Thomas v. Harrington, 54 A. 285, 65 L. R. A. 742.) The thing causing the death of decedent was not the result of any act or omission on the part of the contractor, or his subcontractor, but the negligence of appellant. The evidence is clear that the contractor and the sub-contractor failed in no duty enjoined upon them to warn the deceased of the likelihood of danger. Jackson & Levedahl even were not warned by appellant of the existing hidden or concealed danger. They were in total ignorance that high tension wires like those in question gave off a brush, or disruptive or static discharge of electricity. The danger from this source, though present, was hidden. concealed and beyond the knowledge of the sub-contractors or their servants. The duty of making it known was upon the owner and proprietor--the appellant. (Coughtry v. Woolen Co., 56 N.Y. 124, 15 Am. Rep. 387; John Spry Lumber Co. v. Duggan, 182 Ill. 218, 54 N.E. 1002; Johnson v. Spear, 42 N.W. 1092, 15 Am. St. Rep. 298; Brannock v. Elmore, 114 Mo. 55, 121 S.W. 451; Beach on Contributory Negligence, 51; Stevens v. United Gas & Elec. Co., 60 A. 848, 70 L. R. A. 119; Braun v. Buffalo Gen. Elec. Co., 94 N.E. 206, 21 Ann. Cases 370, 34 L. R. A. N. S. 1089, 118 N.Y.S. 1096; Hoppe v. Winona, 129 N.W. 577, 113 Minn. 252, 22 Ann. Cases 247; Dunn v. Cavanaugh, 185 F. 451; Giraudi v. Electric Imp. Co., 40 P. 108; Shank v. Great Shoshone & Twin Falls Water Co., 205 F. 833; Fitzgerald v. Edison Elec. Mfg. Co., 50 A. 161, 86 Am. St. Rep. 732; Smith v. Twin Cities R. T. Co., 112 N.W. 1001; Overall v. Louisville Elec. Lt. Co., 47 S.W. 443; Gagnon v. St. Maries Light & Power Co., 141 P. 88; Byerly v. Con. L. P. & I. Co., 109 S.W. 1065; Dow v. Sunset T. & T. Co., 121 P. 379; Gentzkow v. Portland Railway Co., 102 P. 614.) This court has recently passed upon some of the matters involved in the present case. (Speight v. Telephone Co., 107 P. 746; Swan v. Salt Lake & Ogden Railway, 41 Utah 518, 127 P. 267.) "The fundamental and general principle that a company like respondent, if reasonably chargeable with knowledge, or in the exercise of reasonable prudence bound to anticipate, that people may lawfully come in close proximity to its wires either for purposes of business or pleasure, is under obligation to exercise care to keep the latter in a safe condition, is abundantly established." Citing: Connell v. Keokuk Electric R., etc., Co., 109 N.W. 177; Fitzgerald v. Edison Electric Illuminating Co., 50 A. 161, 86 Am. St. Rep. 732; McLaughlin v. Louisville Electric Light Co., 37 S.W. 851, 34 L. R. A. 812; Baries v. Louisville Electric Light Co., 80 S.W. 814, 85 S.W. 1186.
.
It has often been said that where the injured person is dead, wider latitude should be allowed to the jury in passing on the question of contributory negligence. (Schafer v. New York, 48 N.E. 749; Noble v. N.Y. Central, 46 N.Y.S. 645, 55 N.E. 1098.)
STATEMENT OF FACTS.
Plaintiff, as administratrix of the estate of Lawrence Hogge, deceased, brought this action to recover damages for the death of Mr. Hogge, which occurred on the 28th day of June, 1911, at Ogden City, Utah. The defendants were the Salt Lake & Ogden Railway Company, a corporation, hereinafter referred to as "railway company," the Merchants' Light & Power Company, a corporation, hereinafter called "light company," C. J. Humphris, and J. W. Levedahl and Lorenzo Jackson, copartners, as Levedahl & Jackson.
The facts of the case are about as follows: The railway company was, at the time of the accident which caused the death of Hogge, and for some time prior thereto had been, maintaining and operating an electrical interurban line of railroad from Salt Lake City to Ogden City. For the purpose of furnishing power to the electric line of road the company maintained an electric power house or substation in Ogden City. The substation building was constructed of cement and brick and was approximately forty-five feet square, and it was about eighteen or twenty feet from the floor to the roof, with fire walls on all four sides. These fire walls extended about four feet above the roof. The main line of the railway company's electric interurban system passes on the east of the substation and about thirty feet distant therefrom. Along this line of railway there is a pole line supporting transmission wires which continually carry a high current of electricity of approximately 44,000 volts used in propelling the railway cars. The wires of this transmission line leave a pole to the east of the substation building and then continue westward to and over the roof of the building. The line consists of three No. 4 uninsulated copper wires, parallel with each other, about six feet apart, and about nine feet above the roof. On the roof, and about fifteen feet west from the east wall of the building, there is a rack built into the roof. On this rack, which extends upwards, are three insulators in a north and south line, and one wire is supported by each insulator. There is another rack with a set of horn gaps near the west edge of the roof. The transmission wires extend first from the pole situated east of the building to the rack first mentioned, and thence to the rack and horn gaps near the west edge of the building. About midway between the racks mentioned, at approximately the center of the roof, three uninsulated wires, called taps, of the same size and character as the transmission wires, project downward seven or eight feet to the roof of the building. The center tap projects straight downward, while the north and south taps are drawn in so that the distance between the wires where they pass through the roof into the substation building is about three feet instead of six, as are the wires passing over the substation roof. Three earthenware insulators, from two to two and a half feet high, and about a foot in diameter, are inserted in the roof, and the taps pass down through the centers of these insulators. To the north of, and about six feet from, the railway company's substation, was an alleyway. The light company, which was an electrical distributing company located in Ogden City, had, some time prior to the accident complained of, purchased the land adjoining the alleyway on the north, and had obtained the right to close the alleyway, and had leased from the railway company the six feet of ground north of, and contiguous to, the railway company's substation building for a period of twenty-five years for the purpose of erecting thereon, and adjoining the railway company's substation building, a power plant or substation. Under the terms of the agreement, which is styled a "lease," the north wall of the railway company's substation building was to become the south wall of the light company's substation building. The agreement, or lease, contained, among others, the following provisions:
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