Knowlton v. Des Moines Edison Light Co.

• Decision Date: 03 June 1902
• Citation: 90 N.W. 818,117 Iowa 451
• Parties: KNOWLTON v. DES MOINES EDISON LIGHT CO.
• Court: Iowa Supreme Court

117 Iowa 451

90 N.W. 818

KNOWLTON

v.DES MOINES EDISON LIGHT CO.

Supreme Court of Iowa.

June 3, 1902.

Appeal from district court, Polk county; C. P. Holmes, Judge.

Plaintiff, as administrator of the estate of one Charles Downs, deceased, sues to recover damages caused to the estate by the death of Downs, resulting from an electric shock received from defendant's wires by reason of the negligence of defendant, and without negligence on the part of deceased. A verdict was rendered for the plaintiff in the sum of $15,000, and the trial court gave the plaintiff the election of accepting judgment for $7,500 or submitting to a new trial. Plaintiff elected to accept the reduced judgment, and defendant appeals. Affirmed.Connor & Weaver, for appellant.

Clark & McLaughlin, for appellee.

McCLAIN, J.

In November, 1899, the deceased was in the employ of the Mutual Telephone Company as lineman, and was sent with another lineman, under the direction of a foreman, to repair the wires of the telephone company at a place where the telephone wires of his company and of another telephone company were supported on poles, which also furnished support to a lighting circuit of the defendant company, as well as to the cross wires supporting the trolley wire of a street car company. By ordinance of the city, this common use of the poles was authorized, and it is immaterial, therefore, that the poles did not belong to the defendant, their right to the use thereof being unquestioned. The accident causing the death of the deceased happened in the forenoon, and it appears without question that, the night before, deceased and other linemen of the Mutual Telephone Company had visited this place and discovered some “trouble” with the company's line, due to the escape of electricity from defendant's wire to a tree near which the telephone wires were also stretched. At that time the telephone wires were cut out between the poles on either side of the tree, and when deceased and his fellow workmen came back to this place on the morning of the accident they first cut away the portion of the tree which interfered with the wires, and then proceeded to replace the telephone wires which had been cut out the night before. For this purpose Dean, a fellow lineman of deceased, climbed the telephone pole, to which a wire from the central station was still attached, and connected therewith one end of a wire which had been cut out the night before, while deceased, on the ground, proceeded to straighten out the wire and stretch it to the next pole, for the purpose of attaching to it enough more wire to make the connection with the remainder of the line. The supports for the telephone wire which was being stretched were higher on the pole than the support of the defendant's electric lighting wire, and while deceased was stretching out the telephone wire from its point of connection on the pole where it had been attached, walking along the ground towards the next pole, the telephone wire crossed and came in contact with defendant's electric lighting wire, and deceased received a fatal shock of electricity passing from the electric lighting wire through the telephone wire, and through his body to the ground. Deceased was handling the telephone wire without rubber gloves, and without taking any precautions to prevent the grounding of the electric lighting current through his body. With regard to the current in the electric lighting wire, it appears that it had been turned on the night before when the telephone wire was cut out, for at that time the electric lights were burning, although the line, which had recently been constructed, was not yet in full operation; but at the time when deceased and his co-employés commenced to replace the telephone wire, just before the accident, the electric lighting current was not on, for the lamps were not burning; but at some time during the prosecution of the work of replacing the telephone line at this place the electric lighting current was turned on by the employés of defendant for the purpose of testing the circuit, and the escape of electricity from defendant's wire to the telephone wire caused the death of deceased.

Several allegations of negligence were made in the plaintiff's petition, one of them being the act of defendant's employés in turning on a current in the electric lighting wire in the daytime, when deceased would have no reason to expect that there would be a current in such wire, and without taking any precaution to ascertain whether any one was working along the line of the circuit, or to warn persons so working that the current was being so turned on. But the trial court directed the jury not to consider as negligence this action on the part of defendant's employés, and submitted the case on the theory that defendant had the right to transmit an electrical current through its wires in the daytime when such current was not necessary for electric lighting purposes, without ascertaining whether the transmission of such current would in itself be dangerous to persons not in its employ working along the line, and we must determine this appeal on that theory of the case. The allegations of negligence on the part of defendant which were submitted to the jury were in establishing and maintaining electric lighting wires without proper and sufficient insulation, in view of their proximity to wires of other companies, and the character of the current said wires were intended to convey, and also in failing to keep its wires thoroughly and properly covered with “waterproof” insulated material, and “insulated with the best water insulation,” as required by ordinance of the city. Aside from any provision in the city ordinance, it was the duty of defendant to use reasonable care to prevent the escape of electricity from its lines in such way as to cause injury to persons who might lawfully be within the reach of the danger incident to the escape of electricity from such lines; and in view of the highly dangerous character of an electrical current of such power as to operate arc lights, which was in this case shown to be of about 2,500 voltage, the exercise of reasonable care on the part of defendant involved the use of a high degree of diligence and foresight in the construction and maintenance of its lines in a safe condition. Electric Co. v. Simpson, 21 Colo. 371, 41 Pac. 499, 31 L. R. A. 566;Perham v. Electric Co., 33 Or. 451, 53 Pac. 14, 24, 40 L. R. A. 799, 72 Am. St. Rep. 730. In some cases the duty of electric lighting and power companies to prevent the escape of dangerous currents of electricity is likened to that of the keeper of a ferocious animal. See Railroad Co. v. Conery, 61 Ark. 381, 33 S. W. 426, 31 L. R. A. 570, 54 Am. St. Rep. 262; Keasbey, Electric Wires, §§ 239, 249. But it is certainly not the rule of law applicable to such cases that the company is absolutely liable for any injury done by escaping electricity. Such a company is engaged in conferring a public benefit, and, although it is by the nature of its business bound to exercise great care, yet the care required is, after all, only that reasonably consistent with the performance of its functions. It should, along the highway and in proximity to places where persons may rightfully go, insulate its wires, or by putting them out of the way avoid danger to persons who without negligence might otherwise be injured by casually coming in contact with them. Clements v. Light Co., 44 La. Ann. 692, 11 South. 51, 16 L. R. A. 43, 32 Am. St. Rep. 348;Griffin v. Light Co., 164 Mass. 492, 41 N. E. 675, 32 L. R. A. 400, 49 Am. St. Rep. 477. And when the lighting wire is supported on poles which support other electrical wires, which must be attended to by linemen of other companies, the company operating the lighting wire is bound to know that there is danger of such linemen coming in contact with the lighting wire and being injured thereby, if it is not properly insulated, and it will be negligent if it fails to use proper precautions against injury to such linemen of other companies. Illingsworth v. Light Co., 161 Mass. 583, 37 N. E. 778, 25 L. R. A. 552;Power Co. v. Mason's Adm'r, 39 U. S. App. 416, 23 C. C. A. 649, 78 Fed. 74. But the duty to insulate for the protection of persons who may come in contact with the wires does not exist as to parts of the line where no one could reasonably be expected to come in contact with the wire. Hector v. Light Co., 174 Mass. 212, 54 N. E. 539, 75 Am. St. Rep. 300.

In the cases we have referred to, the complaint has been as to failure to cover joints with insulating material, or to keep the insulation...