Hoppe v. City of Winona
| Decision Date | 20 January 1911 |
| Docket Number | Nos. 16,832 - (192).,s. 16,832 - (192). |
| Citation | 113 Minn. 252 |
| Parties | JULIUS HOPPE v. CITY OF WINONA and Another.<SMALL><SUP>1</SUP></SMALL> |
| Court | Minnesota Supreme Court |
The complaint alleged, among other things, that the wires were capable of conveying a very powerful current of electricity, were not insulated, were negligently attached to short steel towers or brackets fastened to the top of the bridge, and were so carelessly and negligently strung that at one point they passed within three or four feet of the top cross girder, and one wire within eighteen or twenty inches of the inside edge of one beam on the top of the bridge; that the wires so strung were negligently maintained on and along the top of the bridge and were negligently permitted by the defendant city to be so maintained, and on the day of the accident the defendant power company negligently permitted the wires to be charged with a heavy current of electricity, and the defendant city negligently permitted the wires to be so charged; that while decedent was astride of the beam nearly opposite the point where the wires sagged and hung over the top cross girder of the bridge, and when in the act of straightening his body, suddenly and without warning a current of electricity from the wires passed through his body, enveloping it in flames and smoke, and causing his body to fall into the river; that at the time of the accident the wires were charged with a heavy current of electricity exceeding forty thousand voltage. The separate answer of defendant city alleged that the work of painting the bridge was done under contract and defendant did not exercise any control or authority over the contractor or his servants. The separate answer of defendant power company, except for the formal admissions, was a general denial.
The case was tried before Snow, J., and a jury which returned a verdict in favor of plaintiff for the sum demanded. From the order denying defendants' separate motions for judgment notwithstanding the verdict or for a new trial, they appealed separately. Affirmed as to both defendants.
Webber & Lees, for appellant La Crosse Water Power Company.
R. A. Randall and Brown, Abbott & Somsen, for appellant city.
Buck & Fitzpatrick, for respondent.
By an act of congress approved September 25, 1890 (26 St. 470), an act of the legislature of the state of Wisconsin (Laws Wis. 1880, p. 314, c. 274), and Sp. Laws Minn. 1891, p. 742, c. 113, the city of Winona was authorized to construct and maintain a wagon bridge across the Mississippi river from the city to the Wisconsin side of the stream. Pursuant to this authority the bridge was constructed and since maintained by the city. Defendant La Crosse Water Power Company owns and operates a power plant on the Wisconsin side of the river, developing therefrom electricity and conveying the same by means of electric wires to the city of Winona. In 1907 the city council, by ordinance duly enacted, granted authority to and permitted the power company to string its said wires over and attach the same to the bridge. The ordinance required that the wires should be attached to high voltage insulators, and be strung from the frames of angle iron to be attached to the topmost girders of the bridge. The wires were so strung about fifty feet above the traveled portion of the bridge and in no way interfered with the use of the same. They were of copper, three-eighths of an inch in diameter, and not insulated. At one point upon the Wisconsin side of the channel of the river the wires were so strung that by reason of the long distance between the supports they sagged and came within three feet of a crossbar of the bridge, and extending parallel with the same a distance of fifteen inches of the top girder, so that it was three feet above and fifteen inches from the side of the girder.
It became necessary in 1909 to make certain repairs upon the bridge, and a contract was let by the city to one Hoppe to paint the iron work of the entire structure. Hoppe employed plaintiff's intestate, who, while upon the iron girder at the top of the bridge, and at the point where the electric wires sagged to within three feet of the same, received a "brush" or "disruptive discharge" of electricity therefrom, without coming in actual contact therewith, and was killed. Plaintiff thereafter brought this action, charging the power company with negligently placing the wire upon the bridge, uninsulated, and not at a sufficient height from the top thereof to avoid injury to workmen upon the bridge, the city with permitting the same, and defendant city with a failure to warn and instruct decedent of the dangers incident to a "brush discharge" of electricity. Defendants put in issue the negligence charged, and alleged that decedent came to his death by reason of his own contributory negligence. Plaintiff had a verdict, and defendants separately appealed from an order denying their independent motions for judgment notwithstanding the verdict or a new trial. The assignments of error present questions peculiar to each defendant. We dispose of the question presented by the power company first.
1. It appears that the wires were strung upon the bridge pursuant to authority granted by the city in the form of an ordinance enacted for that purpose, which ordinance specified the manner and condition in which they should be strung. In fact, the ordinance required that the work be done under supervision of the city engineer. The trial court instructed the jury that, if there was negligence in the manner in which the wires were attached to the bridge, directing particular attention to the place where decedent met his death, both defendants were liable. It is the contention of the power company that the evidence wholly fails to make a case of negligence in this respect, and, therefore, that a verdict should have been directed for both defendants. In this we do not concur. The question was, on the evidence, one of fact for the jury.
There is and can be no controversy concerning the principles of law applicable to the case.
The power company was unquestionably under legal obligations, in placing the wires upon the bridge, to exercise care commensurate with the dangerous character of the instrumentality, and to adopt such methods as were reasonably practicable to avoid endangering those who might be employed upon or otherwise making legitimate use of the structure as a thoroughfare. Gilbert v. Duluth General Ele. Co., 93 Minn. 99, 100 N. W. 653, 106 Am. St. 430; Musolf v Duluth Edison Ele. Co., 108 Minn. 369, 122 N. W. 499, 24 L.R.A. (N.S.) 451. The wires in question carried from twenty-five thousand to forty-five thousand voltage of electricity, and were not insulated or otherwise protected from contact by persons working upon the bridge. It appears that uninsulated wires so heavily charged throw off at times a "brush" or "disruptive discharge" of electricity sufficient to cause the death of a person in close proximity thereto, without actual contact with the wire. This fact is well known to electricians and those familiar with this generally unknown, powerful, and destructive agency.
The power company was bound to take knowledge of the fact that it would become necessary from time to time to make repairs upon the bridge, particularly in painting the same, to prevent deterioration and decay from exposure to the elements, and in placing the wires thereon precaution should have been taken for the safety of those thus engaged. Byerly v. Consolidated Co., 130 Mo. App. 593, 109 S. W. 1065. If the placing of the wires upon the bridge in the manner stated was an act of negligence, and likely to result in injury in some form, it is immaterial that defendant could not reasonably have anticipated injury in the manner disclosed in the case at bar. Christianson v. Chicago, St. P. M. & O. Ry. Co., 67 Minn. 94, 69 N. W. 640. But, as stated, the law of the case is not disputed. Defendant's contention is that its full duty in the premises has been discharged.
It is claimed that the evidence is conclusive that it was impracticable to insulate the wires; that, if insulated, the elements would destroy the same and render the wires of greater danger; and, further, that they could not have been elevated higher at the point in question without imposing an additional strain upon the bridge and imperiling its strength; hence that the court should have directed a verdict in defendants' favor. This argument is not of substantial force.
It must be conceded, since the jury so found, that in the condition in which the wires were strung they were dangerous to the life and safety of those at work upon the bridge. There was no imperative necessity that they should be strung at this place, and the reason for doing so would seem to have been one of economy in the distribution of electricity developed by defendant at its plant. Defendant had no vested right in the use of the bridge for that purpose, and, though granted by the city council, the right should have been exercised with due regard to the safety of those engaged in the vicinity of the wires, and, if their safety could not be provided for, a probable injury guarded against by reasonable precautions, the right should not have been exercised at all, and other methods of...
To continue reading
Request your trial