Lomoe v. Superior Water, Light & Power Co.

• Decision Date: 05 October 1911
• Citation: 147 Wis. 5,132 N.W. 623
• Court: Wisconsin Supreme Court
• Parties: LOMOE v. SUPERIOR WATER, LIGHT & POWER CO.

147 Wis. 5

132 N.W. 623

LOMOE

v.SUPERIOR WATER, LIGHT & POWER CO.

Supreme Court of Wisconsin.

Oct. 3, 1911.

Dissenting Opinion, Oct. 5, 1911.

Appeal from Circuit Court, Douglas County; Frank A. Ross, Judge.

Action by Oscar Lomoe, administrator of Orrin Lomoe, against the Superior Water, Light & Power Company. From a judgment for plaintiff, defendant appeals. Affirmed.

This is an appeal from a judgment for damages in an action by plaintiff as administrator for the death of his son alleged to have been caused by the negligence of the defendant. The negligence charged is the maintenance of defendant's wires carrying large and powerful currents of electricity so that said wires were resting upon and in contact with other wires located upon a shorter pole than the pole of the defendant standing at the corner of Hennepin avenue and Third street at Itasca station, city of Superior, and which wires on the short pole were resting upon and in contact with a guy wire on said pole, which guy wire became charged and conveyed the current to the plaintiff's son causing his death. Deceased was 10 years of age, and is alleged to have been killed about 9 p. m. August 6, 1910, by coming in contact with the guy wire charged as before stated.

The jury returned the following verdict:

Question 1. Was plaintiff's son, Orrin Lomoe, killed by electric shock resulting from contact with the guy wire mentioned in the evidence? Answer: Yes.

Question 2. Was the defendant guilty of negligence in maintaining its electric light wires at the place of the accident in the manner in which the same were maintained? Answer: Yes.

Question 3. If you answer question two “yes,” was such negligence the proximate cause of the death of plaintiff's son, Orrin Lomoe? Answer: Yes.

Question 4. What amount of money will compensate plaintiff for the financial loss resulting from the death of his son? Answer. $3,000.

The plaintiff moved for judgment on the verdict, and the defendant to have the verdict set aside and for a new trial, and on these motions the court ordered that the motion of the defendant be granted unless the plaintiff file a stipulation remitting the sum of $500 from the verdict and consent to take judgment for $2,500 and costs, in which event defendant's motion should be denied. The plaintiff having filed a stipulation to remit $500 from said verdict and consented to take judgment for $2,500, it was ordered that judgment be entered in favor of the plaintiff for $2,500 and costs. Judgment was entered accordingly, from which this appeal was taken.

Marshall, J., dissenting in part.

Luse, Powell & Luse, for appellant.

W. P. Crawford, for respondent.

KERWIN, J. (after stating the facts as above).

There is little dispute upon the facts in this case. Itasca station is in the eastern part of the city of Superior, and is a place where trains are made up, and contains a group of residences with 300 or 400 inhabitants. It is conceded for the purpose of the case that Third street runs east and west and Hennepin avenue north and south crossing Third street at right angles. The plaintiff and his deceased son lived near by. On August 16, 1910, at 8:45 p. m., deceased went for a pail of water and in going the usual course passed under the guy wire hereafter described. The boy brought the pail of water to the sidewalk near the guy wire, placed it on the walk, and his body was found under the guy wire near the walk. In the northeasterly corner of the intersection of the streets named stood a telegraph or telephone pole known as the Omaha pole, being used by parties other than defendant and connected with the Omaha railroad. There were wires extending from buildings of the Omaha road north along Hennepin avenue to this pole and two wires extending west to residences. There was one cross-arm upon this pole five feet in length upon which were four pins and the wires fastened with insulators. The wires attached to this cross-arm were 26 feet from the ground. Two wires from the south stopped at this pole and were attached to the two pole pins, each about 12 inches from the center, one upon either side of the pole. The other two insulators were near the ends of the cross-arm and about 18 inches distant from the other two pins. The cross-arm was on the west side of the pole, and a short wire called a pin wire was fastened to one of the pole pins and passed around the east side of the pole and fastened to the other pole pin in order to support the pins from the drawing of the wires extending from the pole south. This pole had been in position for three years or more. The ownership of it does not appear, nor does it appear who placed or maintained the wires upon it.

The defendant owned and maintained a line of poles extending north and south along the easterly side of Hennepin avenue. The two poles in said line standing nearest to the Omaha pole were about 113 feet apart. The one to the south 58 feet and the one to the north 55 feet. This line of poles carried two cross-arms and wires thereon. On the lower cross-arm were three wires, two of which were primaries and the center one a neutral. The wires on the lower cross-arm were about 28 feet 8 inches above the ground on the pole north and about 29 feet 8 inches above the ground on the pole south, making the wires at the time they were put up about 3 feet at the points of fastening above the wires on the top of the cross-arm of the Omaha pole. The Omaha pole and the defendant's poles were in line.

The wires of the defendant attached to the lower cross-arm of defendant's poles mentioned were placed three years before the accident, and were put up so as to allow 26 inches sag between the two poles, and in the spring before the accident they were from six to ten inches above the cross-arm on the Omaha pole. It appears that three years before the accident some one, unknown, and without the consent of defendant, placed a guy wire upon the Omaha pole, fastening the guy wire at the top of the pole above the cross-arm, and tied this wire to defendant's pole standing 55 feet north at the height of 5 feet 10 inches above the sidewalk. This guy wire passed down and near the pin wire, where it passed around the back of the pole so it would touch the pin wire when pressed down. The defendant's primary wires carried 2,300 volts of electricity.

[1] 1. Error is assigned in the admission of evidence to the effect that the witness, a boy, had played around the guy wire and swung upon it, and that other boys had played around the wire and swung it. The evidence is that the boys generally swung on it--all the boys in Itasca. The objection to this evidence is that it does not appear that the defendant had notice of such acts by the boys, and, further, that the evidence does not relate to a general custom. It may well be that the evidence fell short of proving a general custom, but we think it was admissible upon the question of defendant's negligence in allowing the wire to remain in the dangerous condition in which the evidence tends to show it was, in view of its location and the habits of the boys in Itasca respecting and in view of the fact that the evidence was sufficient to carry the case to the jury on the point of notice sufficient to charge the defendant with responsibility for the condition of the wire. One witness testified that two months before the accident he saw evidence of contact of defendant's wires with the guy wire; that he saw sparks or flickering of fire on the top of the pole to which the guy wire was attached; that he saw it several times and heard noise indicating contact. The evidence also tends to show that such condition continued and was manifest when the guy wire was pressed down. Three witnesses testified that two weeks before the accident they saw evidence of contact, describing the sparks and flickering near the top of the pole. Without further discussion of the evidence, we are convinced that for at least two months before the accident the condition was such as to warrant the jury in finding that the defendant was chargeable with notice.

[2] 2. Error is assigned in allowing Dr. Baird to answer the following question: “Q. Doctor, assuming that on the night of this visit of yours to Mr. Lomoe's house this boy was ten years and three months of age; that previous to that time he had been in average good health, in perfect health; that he was an active boy; that about 8:45 o'clock on that same night he was sent by his father for a pail of water, and in returning he set the pail full of water down on the sidewalk close to a pole which carried electric light wires and to which a guy rope was attached that ran from this pole up to near the top of another pole which was 26 feet high; that this guy wire was about 5 feet above the sidewalk; that within two feet of the pole to which this guy wire was fastened there was a track, traveled path; that about 5 or 10 minutes after he was sent for the pail of water he was found by his father lying under the guy wire with his head towards the sidewalk and within 2 or 3 feet of the pole, his arm and legs extended and gasping; that his father picked him up and took him into the house; that his clothing was removed and he was put in a tub of hot water; that he was shortly afterward taken out of the tub and pounded on the back; and that then artificial respiration was used, the arm movement, and continued for about 25 minutes and until you arrived and saw the boy--take that into consideration, and taking into consideration the condition of the boy's body as you found it and as you testified here, and taking into consideration your experience as a physician and surgeon, state what in your opinion was the cause of the boy's death.” The witness answered: “I would say the cause of the death was electric shock.”

The contention of the appellant is that the facts embraced within the question were not the subject of expert evidence; that the inferences to be deduced...