Louisville Gas & Electric Co. v. Beaucond

• Decision Date: 08 June 1920
• Citation: 224 S.W. 179,188 Ky. 725
• Parties: LOUISVILLE GAS & ELECTRIC CO. v. BEAUCOND.
• Court: Kentucky Court of Appeals

224 S.W. 179

188 Ky. 725

LOUISVILLE GAS & ELECTRIC CO. v. BEAUCOND.

Court of Appeals of Kentucky.

June 8, 1920

Rehearing Denied Sept. 21, 1920.

Appeal from Circuit Court, Jefferson County, Common Pleas Branch Third Division.

Action by Maurice J. Beaucond against the Louisville Gas & Electric Company. From judgment for plaintiff, defendant appeals. Affirmed.

Matt O'Doherty, of Louisville, for appellant.

Edwards Ogden & Peak, of Louisville, for appellee.

HURT J.

This action was brought by the appellee, Maurice Beaucond, whom we will hereafter call the plaintiff, against the appellant Louisville Gas & Electric Company, which will hereafter be called the defendant, to recover damages for injuries which he alleges that he sustained from the negligence of the defendant. Two trials have been had during the pendency of the action, the first of which, as well as the second, resulted in a verdict of the jury awarding to the plaintiff damages in a substantial sum. The first verdict and judgment thereon were set aside by the circuit court upon the motion of defendant and a new trial granted, but upon the second verdict the court rendered judgment for the plaintiff, and the defendant's motion for a new trial having been overruled, it has appealed.

The defendant is engaged in the manufacturing and sale of electricity in the city of Louisville for heating, lighting, and power purposes, and in the conduct of its business and in the transmission of electricity to its customers it owns and uses poles and wires which are erected upon and stretched along the streets. One of the streets thus occupied by it is Baxter avenue, and upon this same street the Home Telephone Company also has poles erected and its wires strung thereon. The poles of the two companies occupy the same side of the street and are set very near to the curbing and nearly in line with each other, which places a pole of the telephone company with a pole of the defendant upon each side of it. The poles of the telephone company exceed those of the defendant in height, and hence the wires of the former are above those of the latter. At the point where plaintiff received the injuries, the pole of the telephone company stands slightly nearer to the curbing than the poles of the defendant upon either side of it, and also has an inclination of 5 or 6 inches away from the street. The defendant has 17 wires suspended upon arms upon each of its poles upon either side of the telephone company's pole, and they pass by the latter pole at a distance of 7 or 8 feet from its top. Two of the defendants' wires are upon the side of the telephone pole next to the curbing or property line, and upon that side of the telephone pole a bracket has been attached to which the defendant's company's wires were attached at the time of the plaintiff's injuries, and there was evidence to the effect that previous to the time of the plaintiff's injuries the wire mentioned had been lying between the bracket and the pole, causing a blackened mark upon the pole as the result of the escape of the electrical current from the wire. If upon the bracket, it was 3 or 4 inches from the pole. One of the steps or iron stirrups by which the telephone pole is ascended is fastened to the pole at a distance of 3 to 6 inches below the last-mentioned wire of the defendant, and this wire carried an electric current with a voltage of 2,200. The telephone pole was what is denominated a "terminal," and attached to the cable proceeding from the terminal, at the top of the pole, was a grounded wire which is denominated a "messenger."

The plaintiff was a servant of the telephone company in the capacity of a line or "trouble" man and had been for several months theretofore, and had been in charge of the district of the city in which is situated Baxter avenue, though he had never ascended the described pole and had never had occasion to give it any particular attention. Upon the occasion of his injuries he was required in the course of his duties to ascend the pole to near the top in order to investigate and find the cause of a trouble with the line which connected with a customer of the telephone company. According to the version of the plaintiff, he ascended the pole upon the side nearest to the property line, and when he reached the wires of the defendant's company upon that side, on account of their proximity to the pole, he reached over to the stirrup above, and with his left foot resting upon the stirrup immediately underneath the wire he placed his right foot upon the stirrup upon the other side of the pole, which is 18 inches above the one upon which his left foot was resting, and at the same time he was holding on with his left hand to the stirrup which was 36 inches above the stirrup where he had placed his left foot, and drawing up his body with his left hand and right foot, he reached out with his right hand for the purpose of taking hold of the "messenger" wire, when, unwittingly and unintentionally upon his part, his left foot came in contact with the defendant's company's wire just above it, and when the points of his fingers came in contact with the "messenger" he experienced an electrical shock which caused him to loose his hold with his left hand from the stirrup to which he was holding and to fall to the concrete sidewalk underneath, a distance in excess of 30 feet. The fall severely and permanently injured his feet, and he also otherwise received injuries.

The negligence with which plaintiff charged the defendant company, and which he relied upon as the proximate causes of his injury, rests upon the averment that he was in a place at the time of his injuries where he had a right and in which was his duty to be and where the defendant was required to anticipate his presence, and that it had negligently strung and maintained its wires, which were charged with an electric current calculated to produce death by coming in contact with them, in dangerous proximity to the pole of the telephone company, where defendant knew it was his duty to be and to go, and that it negligently transmitted a large electrical current over the wires, which were insufficiently insulated at such a place, and on account of the proximity of the wires to the pole of the telephone company and their insufficiently insulated condition it rendered the place hazardous and dangerous, and resulted in his injuries, when he was exercising ordinary care for his safety, and while the defendant's company knew, or would have known by exercising the commensurate degree of care required, of the dangerous manner in which the wires were maintained and the insufficiency of their insulation. He did not know that the wires were charged with a high or dangerous current of electricity or were insufficiently insulated.

The defendant company denied all the averments of plaintiff's petition, and in addition thereto pleaded that his injuries were caused by his contributory negligence. It also pleaded that after the injuries were sustained by plaintiff he made a claim against the Home Telephone Company to the effect that his injuries were caused by the negligent failure of the telephone company to provide him a reasonably safe place in which to work, and in compromise and satisfaction of the claim the telephone company had paid the plaintiff a sum of money, and that he executed a writing to the telephone company acknowledging the receipt of the money in satisfaction of his claim and releasing it from further liability. By reply the plaintiff traversed the allegation of the answer and pleaded that it was true he had made a settlement with the Home Telephone Company and received from it $750 in part satisfaction only of his cause of action and the damages suffered by him, but in full satisfaction of his claim for damages against the telephone company, expressly reserving the right to prosecute an action against the defendant. The written agreement entered into between the plaintiff and the telephone company was filed as a part of the reply.

(a) The plaintiff was permitted, over the objection of the defendant to prove by various witnesses who are experts in construction of the necessary facilities of electrical companies that it was practical for the defendant to have placed a cross-arm upon the telephone pole and attached its wires thereto, and thus have removed the wires to such a distance from the pole as to reduce the danger of one coming in contact with them in ascending or descending the pole to a minimum. The defendant now insists that the admission of the testimony was erroneous and prejudicial to its rights for two reasons: First, the poles of defendant were placed in their positions upon the street and the wires strung upon them several years before the poles of the telephone company were erected, and the telephone company was thus necessarily the cause of the proximity of the wires of the defendant to the pole; second, that the failure to fix a cross-arm and suspend the wires to it was not an act of negligence which was complained of in the petition. Touching the first ground of objection to the competency of the testimony, it should be observed that a contract between the defendant and the telephone company was introduced in evidence, the stipulations of which were not denied by the defendant, and by which the two companies had agreed that the defendant could place upon the telephone company's poles such attachments as it might desire to use in connection with properly constructed metallic circuits for the distribution and transmission of electricity, and the telephone company could place upon the poles of defendant such attachments as it might desire for furnishing telegraphic or telephonic communications. The evidence does show that the poles...