Loveless v. Town of Wilton

• Decision Date: 23 June 1922
• Docket Number: 34605
• Citation: 188 N.W. 874,193 Iowa 1323
• Parties: BESSIE LOVELESS, Administratrix, Appellee, v. TOWN OF WILTON, Appellant
• Court: Iowa Supreme Court

188 N.W. 874

193 Iowa 1323

BESSIE LOVELESS, Administratrix, Appellee, v. TOWN OF WILTON, Appellant

No. 34605

Supreme Court of Iowa, Des Moines

June 23, 1922

Appeal from Muscatine District Court.--F. D. LETTS, Judge.

PLAINTIFF as the administratrix of the estate of her husband, brought this action to recover damages by reason of his death through coming in contact with an electric wire, which was attached to a water tank owned by the defendant, and upon which deceased, at the time, was working. Trial to a jury. Verdict for plaintiff in the sum of $ 20,000. One ground of the motion for new trial was that the damages awarded were excessive. The court so held, and required plaintiff to elect to take judgment for $ 12,000, or submit to a new trial. Plaintiff filed such election, and judgment was entered against defendant for $ 12,000. The defendant appeals.

Affirmed.

E. M Warner, for appellant.

Charles P. Hanley and Thompson & Thompson, for appellee.

PRESTON, J. STEVENS, C. J., WEAVER and DE GRAFF, JJ., concur.

OPINION

PRESTON, J.

There is a conflict in the evidence at some points, but much of the testimony is undisputed. The trial court, in an instruction of which appellant does not complain, stated the undisputed facts, and submitted to the jury, for its determination, certain matters which were in conflict. The court withdrew certain grounds of alleged negligence, and submitted only those hereinafter referred to. The trial court properly instructed the jury that deceased was, at the time he was injured, in the employ of Taggue & McGaughey, a partnership, as we understand it, who had the contract with defendant town; although, as a part of his compensation, deceased was to receive a part of the money to be paid by defendant to said partnership. The circumstances of the employment of deceased did not make him a partner in the firm, as contended by appellant. The evidence tends to show that deceased had nothing to do for defendant town; he worked for his employers. The first contract was to paint the outside of the tank. Later, another or additional contract was made between the same persons, to scrape the inside of the tank and paint it for a stated compensation, and the town was to put equipment in the tank for electric light, and to furnish the light. Deceased was employed after the first contract was made. The work was begun soon after the second or additional contract, and two or three days before deceased was injured. The accident happened on Thursday, June 10th, a few minutes before noon. The jury could have found, from the conflicting and the undisputed evidence, that, on and prior to May 15, 1920, defendant owned, maintained, and operated a waterworks plant, a part of which plant is a water supply tank, which is supported by steel standards about 60 feet long. At said time, the defendant also owned, maintained, and operated an electric lighting plant. The tank was of steel construction, circular in shape, and had a steel balcony which encircled it at the point where the tank was attached to the supporting legs or standards. This balcony had a railing on its outer edge, constructed of steel rods or bars, attached to iron or steel standards. It was for the use or convenience of persons required to work upon the tank. There had been, prior to June 10, 1920, two bare, uninsulated wires attached to a pole on Cherry Street, which pole was a part of defendant's electric lighting system; and the two wires ran to the railing of the balcony on the water tank, and were attached thereto upon insulators. Said wires, prior to June 10th, ran from the railing to the top of the water supply tank, and thence into the tank, for the purpose of transmitting an electric current to operate a device placed inside of the tank and used for the purpose of signaling from the supply tank to the power house, to indicate to the engineer when the tank was full and when it was empty. The signaling device had not been used for some months prior to June, 1920. As before stated, defendant entered into a contract to clean and paint the water supply tank. On said June 10th, deceased was engaged with his employers in painting the outside of the tank. Some time during the course of the work in painting and cleaning the tank, said Taggue requested the defendant city to provide an electric light inside the tank, to enable them to see in cleaning and painting the inside. Pursuant to such request, defendant, by its electricians, attached certain wires to the signaling wires at the point where they entered the tank through a trap down into the tank, with an electric bulb affixed thereto. After said work had been done by the electricians in installing the light inside of the tank, deceased, who had been working upon a rigging or swinging scaffold, in painting the outside, came in contact with the charged wires, and fell from the scaffold to the ground below, and thereby received injuries from which he died in the evening of that day.

Up to this point, there is substantially no dispute in the evidence. Appellant contends that the evidence was such that deceased and his employers knew, or should have known, that the electricity had been turned on by defendant's electricians and employees, before deceased was hurt. There are some circumstances in the evidence tending to so show. On the other hand, appellee's evidence and the weight of it--at least the jury could have so found--tends to show the contrary. A summary of plaintiff's testimony on this point is that, on the day before the accident, Taggue asked the city officials of defendant town to put equipment in the tank, so they could have light to work by. He first went to one of the officials, with whom he made the contract, and was sent to the power house to see the engineer; and Taggue said the same thing to the engineer, who replied that he would let the city electrician know about it, and he would attend to it. Taggue told the engineer that, when they were ready for the electricity, he would let the engineer know. Taggue says that at no time did he tell the engineer to turn on the electric current, and that he did not authorize anyone else to do so for him. On the morning of the accident, Taggue informed the city electrician that he wanted equipment for light in the tank, and was informed by the city electrician that he was sick, and that one Hall had taken his place, and was acting as city electrician. Taggue then went back to the tank, and in an hour or so, two men appeared at the tank, with equipment for installing the electric light. These two men were Hall, acting city electrician, and his brother. After they had apparently completed their work of installation, Taggue said to them that he would not be ready to go into the tank the next morning, and that he would let them know when to turn on the electricity, and the electrician answered, "All right." At this time, deceased and his coworker, McGaughey, were beneath the platform or scaffold, and more than ten feet away from the electricians while they were working, and some ten feet away from the insulators. The electricians did not tell McGaughey or deceased what they were doing, or that the current had been turned on. A day or so before the accident, McGaughey stood on the balcony, painting the two insulators, and touched the wires which were attached thereto, and which came from the pole on Cherry Street, and received no shock. Deceased was standing by him, and McGaughey told deceased that there was no current in the wires. About two hours after deceased had fallen, McGaughey again touched the same wires, and received a shock of electricity. None of the workmen engaged in painting the tank saw the acting city electrician and his brother cut the wires at the pole on Cherry Street and attach them to the power line. During all the time the electricians were present at the water tank, deceased was absorbed in his work in painting the lower bowl of the tank, on a swinging scaffold, which was underneath the circular platform upon and above which the electricians were working. At the time deceased fell, the platform had been shifted, so that he was working immediately below the wires that ran to the insulators. While deceased was sitting on the swinging scaffold under the wires, he would have had to lean backward and look upward, to see the wires. An electrician of long experience testified that a service wire is one running from a main feeder wire to a building that is to be served with electric light; that wires running from a main line down to the water tank, as described, would be termed service wires. He also testifies as to what would have been the proper way to insulate and attach these wires to the tank, and how they should have been run into the tank.

The only ground of negligence submitted to the jury is stated in Instruction No. 5, wherein the jury was told that plaintiff must establish: First, that the defendant was negligent in this: that, after the bare and uninsulated wires, formerly used to operate the signaling device in the tank, had been converted into a service line for the installation of lights in the tank, for the use of Loveless and his employers in cleaning and painting the inside of the tank, the defendant town, by its officers or employees charged said wires with an electric current, without notice to said Loveless, and negligently failed to notify said Loveless that the wires were so charged with electric current. Second, that Loveless was caused to fall from the scaffold because thereof. Third, freedom from contributory negligence. Fourth, damages. We have abbreviated all but the first paragraph. In Instruction No. 7, the jury was told that deceased was one of the employees of Taggue & McGaughey; that Taggue & McGaughey...