Ladow v. Oklahoma Gas & Elec. Co.
| Decision Date | 10 January 1911 |
| Citation | 119 P. 250,28 Okla. 15,1911 OK 35 |
| Parties | LADOW v. OKLAHOMA GAS & ELECTRIC CO. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
As a general rule, the owner of property may retain to himself its exclusive use and occupation; but, as title and ownership in property depend upon municipal law for their recognition and protection, its use and enjoyment, and the rights and duties of owners, are subject to conditions imposed by law for the welfare and rights of others.
While it is generally true that, where no duty is owed, no liability for negligence can arise, yet duties and liabilities grow out of circumstances and conditions; and where an electric light company is using a current so powerful that contact with its appliances and wires is deadly or dangerous to life and limb, it owes a duty to one, not a wanton trespasser, who, in the ordinary pursuit of a lawful occupation, is in a place where he has a legal right to be and liable to come in contact with such wires, to so insulate them as to render them harmless.
The degree of care to prevent injury to others, required to be exercised by those making a business of handling and selling electricity for a profit, calls for much greater precaution and care in its use than if the property involved was of a less dangerous character. The duty and care demanded is commensurate with the danger and the injury which may follow as a consequence of neglect.
While not an insurer against unforeseen and unavoidable accidents an electric light company, using the public streets of a municipality for its poles, wires, and appliances, in conducting its business, is required to exercise the highest degree of care, and to maintain in the best possible condition the best appliances known to the science, to render its business safe, and to use a degree of care, caution, and circumspection in keeping with the dangerous character of its business.
Absence of insulation on an electric wire, in violation of an ordinance, is prima facie evidence of negligence.
Ordinances of a city provided a penalty for any person, other than the owner, without a written permit, touching, handling molesting, interfering with, etc., any wires or cables used for the purpose of transmitting electric current for light, heat, or power, and provided for the full insulation of all wires of such company, so that they would be harmless to the touch of individuals. An employé of a telephone company, without the written permit provided for, in the ordinary course of his occupation, and in a place where he had a right to be, unintentionally came in contact with an uninsulated wire of the electric light company, and was injured. In an action for damages, the court instructed the jury, in substance, that, unless it found from the evidence that the plaintiff held a written permit, he was prohibited from touching, handling, molesting, or interfering with the wires or cables of the defendant company, and the said company was not guilty of negligence as to plaintiff for its failure to insulate the wires with which plaintiff came in contact, because it owed to him no duty, except not to purposely injure him; and also that if, without such written permit, the plaintiff stepped upon the cross-arm of defendant's pole, for his own purposes, he was thereby violating the law, and was guilty of negligence, such as would be a bar to his recovery, notwithstanding the fact that defendant was found negligent in failing to insulate its wire. Held error.
The insistence by a defendant that, notwithstanding certain instructions excepted to by the plaintiff were erroneous, the error therein was harmless, for the reason that no other verdict, under the evidence, could have been sustained, will not be allowed if, under the evidence in the record, a verdict found for plaintiff would not be set aside for want of evidence reasonably tending to support it.
An electric light company which maintains a pole, on which its wires are strung, so near a pole similarly used by a telephone company that the employés of the latter company, in the performance of their ordinary duties, are liable to come in contact with such wires, owes such employés the duty of so insulating its wires as to render them harmless to the touch, and is bound to take notice that the employés of the telephone company, in the line of their duty, are liable and likely to come in contact therewith, and in a case where an employé of such telephone company, in the usual and ordinary performance of his duties, and not in the commission of a wanton trespass, comes in contact with an uninsulated wire of the defendant company, and is injured, he is not guilty of such contributory negligence as will bar recovery.
(Additional Syllabus by Editorial Staff.)
"Contributory negligence" is nothing more nor less than negligence on the part of the person injured; and the rules of law applicable to the negligence of a defendant are applicable thereto.
Error from District Court, Oklahoma County; George W. Clark, Judge.
Action by Ben R. La Dow against the Oklahoma Gas & Electric Company. Judgment for defendant, and plaintiff brings error. Reversed and remanded.
G. A. Paul and T. F. McMechan, for plaintiff in error.
Flynn, Ames & Chambers, for defendant in error.
This case presents error from the district court of Oklahoma county, begun August 10, 1905, trial being had to a jury February 28, 1908; judgment rendered in behalf of the defendant in error, who was defendant in the court below, to reverse which the plaintiff has brought the case to this court by petition in error and case-made. The action is one for damages, alleged to have occurred by reason of defendant's negligence. The facts out of which the case arose are substantially as follows:
The Pioneer Telephone & Telegraph Company owns and operates a system of telephones in the city of Oklahoma City. The defendant herein owns and operates an electric light plant in said city, and each of these companies has a line of poles and wires strung along the south side of an alley of the said city which at its east end opens on the west side of Broadway, between Main and First streets. At the edge of the sidewalk, just on the inside of the alley, where it enters Broadway, the defendant had placed a pole about 30 feet high, with 3 cross-arms placed at the top thereof a short dis-tance apart, on which were strung wires used for the purpose of carrying the electric current. About 6 inches west of defendant's pole, up the alley from the street, there had been placed by the Pioneer Telephone & Telegraph Company a pole about 45 feet high, with three cross-arms, supported by an iron brace, upon which were strung telephone wires, cable suspensions, and messenger wires. It was not just certain which of these poles was placed first, and the jury, to a special question asked on that point, answered that it did not know. Both companies used This alley for its poles under a joint arrangement; the electric light wires being attached to poles of the telephone company, except at the point at the east end of the alley, where the two poles which we have just described were located. The plaintiff, an employé of the telephone company, on the 7th day of June, 1905, walking on its wires, was engaged in pulling a messenger wire from the west end of the alley to a pole across on the east side of Broadway. On the top cross-arm of the electric light pole were three wires, fastened to glass insulators, a short distance apart. These wires, or some of them, lacked proper insulation, and plaintiff, on arriving at this pole, while engaged in the work of stringing the wire, stepped from the telephone pole or wires on which he was walking onto the top cross-bar of the electric light pole, came in contact with the uninsulated wires, and received a shock which threw him to the pavement, injuring him, on account of which this action is brought.
On the trial, certain interrogatories were propounded to the jury, which, with their answers, are as follows:
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