Huber v. La Crosse City Ry. Co.

• Decision Date: 27 March 1896
• Parties: HUBER v. LA CROSSE CITY RY. CO.
• Court: Wisconsin Supreme Court

92 Wis. 636

66 N.W. 708

HUBER

v.LA CROSSE CITY RY. CO.

Supreme Court of Wisconsin.

March 27, 1896.

Appeal from circuit court, La Crosse county; O. B. Wyman, Judge.

Action brought by Frank Huber against the La Crosse City Railway Company for damages for injuries received in consequence of contact with a live electric wire, connected with defendant's street railway. There was a judgment for plaintiff, and defendant appeals. Reversed.

Action to recover damages sustained by the plaintiff by reason of alleged negligence of the defendant. The complaint charges that, at the time of the injury, the plaintiff was an employé of the Brush Electric Light Company, which maintained, at the northwest corner of the intersection of Main and Fourth streets, in La Crosse, a wooden pole, to support one end of a wire stretching across the intersection of the streets from northwest to southeast, from the center of which an electric street lamp was suspended, and, to the knowledge of the defendant, the employés of the light company were obliged to and did climb said wooden pole to attend to such street lamp; that the defendant erected an iron post or pole close to and adjoining such wooden pole, and to which one end of a span wire was attached, which supported its trolley wire in and over the center of Fourth street, and such span wire was so near to the wooden pole as to be dangerous to employés of the light company while climbing it, unless it was properly insulated and free from the electric current in the trolley; that the defendant negligently allowed said span wire to become charged with a powerful current from the trolley wire, which it supported, and the plaintiff, a lineman of the light company, while climbing the wooden pole, without fault on his part, came in contact with said span wire and said iron pole, so as to form a circuit, and he received a shock which caused him to fall a distance of about 20 feet, to the ground, whereby he was seriously injured; that, at the time, said light company, by its agents and employés, of whom the plaintiff was one, was engaged, at the request of the defendant, the railway company, in removing the said lamp from its position. The acts of negligence relied on were: (1) The erection of said iron pole in such close proximity to the pole of the light company as to render the climbing of the latter dangerous, unless the defendant's span wire was properly insulated from the trolley; (2) in operating a portion of its railway before it was fully completed, with the span wire in question uninsulated and charged with a heavy current that escaped from the trolley wire. The answer denied the negligence charged, and averred that the defendant, at the time, had constructed and maintained its posts, trolley wires, and other appliances in accordance with the city ordinance; that at the time the light company, by the plaintiff as its employé and by its superintendent, was engaged in carrying out a contract between it and the defendant for the removal of its wires, lamps, etc., where they interfered with the erection of the defendant's line, and that, while so engaged, the plaintiff carelessly came in contact and connection with said span wire at a point beyond which it was insulated, and received the alleged shock; that he well knew the point at which the span wire was insulated, and the consequences of making a connection with the same, and that he was guilty of contributory negligence. The defendant moved for a nonsuit at the close of the plaintiff's case, which was denied, and at the close of the evidence requested the court to direct a verdict for the defendant, which the court refused. The plaintiff had a verdict and judgment, from which the defendant appealed.

The evidence was that the trolley wire and span wire and the street lamp and poles were situated as stated in the complaint,--the wooden pole of the light company being about 30 feet high and 10 feet higher than the iron pole, and had a return wire from the lamp to the pole passing down it, to a ratchet near the bottom, so that the lamp could be raised and lowered to renew the carbons without climbing the pole, but to remove anything that got on the wires they would have to climb the pole; and at many street intersections in the line of the defendant's trolley, the light company maintained street lamps in a similar way, the position of which had to be changed when the defendant built its line, but at the defendant's cost. Accordingly, the defendant entered into a contract with the light company to make such changes or removals, and it entered upon the work thereof, the defendant not interfering with or taking any part in it. The defendant had constructed its line south on Fourth street to Main street, which runs east and west, and it was intended that its line should turn upon Main street in both directions. The method of construction was that iron poles or posts were erected opposite each other on both sides of the street at intervals. Wires, called “span wires,” cross the street at the top of these poles and support the main or trolley wire, which is attached to them by a “bell hanger” or “bell insulator,” which, when properly constructed, and in good condition, will prevent any escape of the trolley current to the span wire; and, as an additional precaution, where the poles are iron, as in this case, and to guard against any possible leakage or defect in the “bell insulator,” there was placed in the span wire, and between the trolley and each iron pole or post, about 16 or 18 inches from the post, a “circuit break,” so that any current that escaped from the bell insulator would be arrested, and would not reach the iron post. The evidence was that these appliances used by the defendant were of the best kind, and in good order, and tended to show that the construction and management of the defendant's line was under the control of a competent electrical engineer. The wooden pole of the light company, in question, was crooked, inclining towards the east and south, and its base was 7 or 8 inches east, and a little south, of the defendant's iron pole or post. About 10 feet from the ground, by reason of the crook in the wooden pole, the two were in contact, and by reason of the inclination of the wooden pole to the south and east, there was an interval, from the point between them, gradually increasing to about 8 inches at the top of the iron post, and opposite the span wire,--the iron post being west and a little north of the wooden pole. The span wire, running east from the top of the iron post, passed on the north side of the wooden pole, and about 3 or 4 inches distant. The west end of the circuit break in the span wire was 7 3/4 inches to the east of the wooden pole, and the end of the span wire east of the circuit break was 13 3/4 inches from the wooden pole, and the pole could be climbed from the south or east side without coming in contact with the span wire. A person climbing the wooden pole on the north side would have to pass over the span wire, and would usually come in contact with it in some way, but only with the portion of it between the iron post and the circuit break, which was dead or uncharged; but, in case of defect in both bell insulator and circuit break, should it be charged or “live,” the person coming in contact with it, while adhering to the nonconducting wooden pole, would be safe, unless he at the same time came in contact with the iron post. The bell insulator and circuit break were in good order, and the span wire between the circuit break and the iron post which passed on the north side of the wooden pole was “dead.” When the defendant company had reached the point in question with the construction of its line, its trolley wire was attached to this span wire by the bell insulator over the center of Fourth street and on the north side of Main street, and quite a length of the trolley wire, intended to be used in curving onto Main street to the west, remained projecting south of the span wire, and was coiled up as far back as the bell insulator, and laid around and over the bell insulator, and upon the span wire and trolley wire to the north, so that, while the defendant operated its line so far as constructed, as it did continuously from August 8th to August 19th, when the accident occurred, this span wire became and was charged with the trolley current up towards said posts or poles as far as the circuit break. This coil of the...