Kraatz v. Brush Elec. Light Co.

• Decision Date: 10 October 1890
• Citation: 46 N.W. 787,82 Mich. 457
• Court: Michigan Supreme Court
• Parties: KRAATZ v. BRUSH ELECTRIC LIGHT CO.

46 N.W. 787

82 Mich. 457

KRAATZ v. BRUSH ELECTRIC LIGHT CO.

Supreme Court of Michigan

October 10, 1890

Appeal from superior court of Detroit; HENRY N. BREVOORT, Judge.

Marston, Cowles & Jerome, for appellant.

Thomas Hislop, (Elliott G. Stevenson, of counsel,) for appellee.

MORSE J.

The plaintiff recovered judgment in the Wayne circuit court for damages, upon the claim that he was severely and permanently injured and crippled by an electric shock while trimming lamps on an electric tower in Detroit, on the 19th day of August, 1886, at about 9 o'clock in the morning. The plaintiff's evidence showed that he had been working for the defendant company as a trimmer from April, 1886, up to the day of the injury. On that day he had trimmed the lamps in 12 or 13 towers before he came to the tower at the corner of Hastings and Marion (now Winder) streets. He went up this tower and trimmed three lamps, and had nearly completed the fourth one, when he received a shock, from which he claims his condition at the time of the trial resulted. It is not disputed but that he received or had a shock to his system of some kind while on this tower. The defense claimed that it was from paralysis, and not from electricity, and much medical evidence was introduced on both sides, one set of physicians claiming that his injuries were or might have been caused by an electric shock, and another set testifying that his condition was the result of paralysis. This question was settled in plaintiff's favor by the verdict of the jury. This tower where the shock was received was upon the circuit numbered 11, and the wires should have been, and were supposed to be, at the time plaintiff was working upon the lamps, dead wires, or wires not charged with electricity. It is very plain from the whole evidence that if the shock received by the plaintiff was from electricity, it was caused by live wires, or wires charged with an electric current crossing the dead wires on circuit No. 11, and communicating by contact electricity to one or more of them. At this time circuit No. 4 was used for the purpose of furnishing electric light during the day-time, and the wires upon such circuit were consequently "live wires" at the time plaintiff was trimming the tower where he was injured. The wires in circuit No. 4 ran part of the way upon the same poles as the wires on circuit No. 11 to-wit, from the works of the defendant to the corner of Shelby street and the alley, "and from the corner of Griswold street and Michigan avenue, the north-west corner on the east side of Michigan avenue, around Farnsworth's store, from Woodward avenue to the corner of Gratiot." There were crosses of these dead and live wires observed on the very day of the injury to plaintiff. It was shown that when the insulation of these wires is worn off, and such insulation will wear off by friction as well as from other causes, so that the bare wires come together,-a live and dead wire in contact,-the electricity would instantly be conveyed from the live to the dead wire along the whole line of the wire. It was also shown that the insulation had worn off in places on the wires. That the wires were improperly placed upon the poles so that the wires of one circuit crossed those of another, and that whenever they sagged, and sagging was to be expected, the wires of different circuits would touch one another. The main objections to the verdict are directed against the declaration and proof in the case. The declaration was specially demurred to, and the demurrer overruled. The defendant then pleaded, and issue was joined upon the plea. The questions raised upon demurrer were again interposed upon the trial by the defendant objecting to the introduction of any evidence under the plaintiff's declaration.

It is claimed by plaintiff's counsel that, inasmuch as the defendant did not choose to stand upon its demurrer, but pleaded issuably after it was overruled, it could not thereafter again raise the questions settled by the overruling of the demurrer; citing Ashton v. Railway Co., 44 N.W. 141; Cicotte v. County of Wayne, 44 Mich. 173, 6 N.W. 236; Peterson v. Fowler, 43 N.W. 10. See, also, Wales v. Lyon, 2 Mich. 276. This position is undoubtedly correct under all our previous holdings, and this disposes of all the questions raised upon the declaration.

It is strenuously argued that there was no evidence in the case showing how the accident occurred. As before intimated, we think differently. The first question to be determined by the jury was the nature of the shock that the plaintiff received. Was it from electricity or paralysis? If from the former, as the jury found, it was difficult to ascertain how it occurred. The wires upon circuit No. 4 were live wires. They were in contact in more than one place that day, as shown by the proofs. The shock, it is true, might have been caused by turning the electric current upon circuit No. 11, through the negligence of the defendant's employes, or the act of a stranger, or perhaps from unavoidable accident, though the latter two suppositions are hardly entertainable; but the most probable cause was the transfer of electricity from some live wire on circuit No. 4 to some dead wire on circuit No. 11 at some of the crosses of these wires. The jury under the evidence had the right to infer that this was the case, and they were not compelled to find what particular wire of circuit No. 4 came in contact with a wire of circuit No. 11, or with what particular wire of No. 11, nor at what precise spot this contact and transfer took place. This would be an impossibility, and such a chasing or tracing of lightning is not required. The negligence of the defendant company in so stringing their wires that the wires of one circuit cross another, so that a slight sagging of one wire will bring the two in contact, and maintaining one circuit as a live one while employes are set at work handling with bare hands the wires of the dead circuit so crossing the wires of the live circuit, is plainly apparent to any one. And there was no excuse for it, when we consider the deadly nature and effect of the electric current passing over the wires.

Fault is found with the charge of the court upon the assumption that the circuit judge put hypothetical suppositions to the jury, not based upon any testimony in the case, thereby misleading them, and permitting, and perhaps inducing, them to base a verdict upon one or more of such suppositions. We do not think the charge is open to this objection. The evidence in the case took a wide range, and there was a great deal of theory advanced upon both sides in...