Mangan's Adm'r v. Louisville Electric Light Co.

• Decision Date: 27 March 1906
• Citation: 122 Ky. 476,91 S.W. 703
• Parties: MANGAN'S ADM'R v. LOUISVILLE ELECTRIC LIGHT CO.
• Court: Kentucky Court of Appeals

91 S.W. 703

122 Ky. 476

MANGAN'S ADM'R v. LOUISVILLE ELECTRIC LIGHT CO.

Court of Appeals of Kentucky.

March 27, 1906

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

"To be officially reported."

Action by Daniel S. Mangan's administrator against the Louisville Electric Light Company. From a judgment in favor of defendant, plaintiff appeals. Reversed.

Mat O'Doherty, for appellant.

O'Neal & O'Neal, Forcht & Field, and R. L. Greene, for appellee.

HOBSON C.J.

This action was brought by the appellant as administrator of the estate of Daniel S. Mangan, deceased, to recover of appellee damages for his death which occurred from contact with an electric current in the machine shop of the Louisville &amp Nashville Railroad Company in the city of Louisville. Upon the trial in the court below the jury returned a verdict for the appellee, and from the judgment refusing appellant a new trial and dismissing the action this appeal is prosecuted.

The cause of action set out in the petition in brief is that the appellee was under contract to furnish the railroad company electricity for the lighting of its machine shops; that it was its duty to see that the lines leading from its plant and dynamos were properly insulated and protected so as to prevent injury to those in the machine shops; that for this purpose it used a transformer connected with its wires outside of the machine shops; that it was appellee's duty to keep the transformer in proper condition and repair, which it negligently failed to do and by reason of such negligence it got out of repair, and became so defective that it suffered an unnecessary, unusual, and highly dangerous current of electricty of not less than 2,000 volts to escape from appellee's lines to and over the lines of the railroad company in the machine shops with which the appellant's intestate, who was an employé of the latter company, and unacquainted with electricity, in attempting to light a certain lamp or burner in the machine shops, came in contact and was thereby killed without fault on his part. The defense interposed by appellee is in substance that the transformer was in perfect condition, and the intestate's death was caused by his own contributory negligence in getting upon a metal stand to turn on the light in the shops whereby a connection with the ground was furnished the electricity, and by the fault of a telephone line repairer in making a ground connection with appellee's lines on the outside at the same time in repairing a telephone line leading into the adjacent building of the Mengel Box Company and further that these acts of the intestate and telephone repairer were without appellee's knowledge, and beyond its control. Without consuming time in discussing the evidence it is sufficient to say that though the contention of each party received support therefrom, it was quite conflicting, but unquestionably the case should have gone to the jury as the court allowed it to do.

The instructions given by the court, so far as material, are as follows: "(1) The court instructs the jury that if they believe from the evidence that the defendant company negligently failed to exercise the utmost care and skill which prudent persons are accustomed to exercise under similar circumstances, in the management and care of its wires, appliances and electrical currents, so as to prevent the entry into the building where plaintiff's intestate was killed of an electrical current that was more dangerous than necessary to reasonably conduct its business of lighting said building, and by reason of such negligence, if any there was, the plaintiff's intestate was killed, then the law is for the plaintiff and the jury should so find, unless they shall further believe from the evidence that the plaintiff's intestate contributed to cause his injury by his own negligence and that he would not have been injured but for his contributory negligence, if any there was. (2) But unless the defendant negligently failed to exercise the utmost care and skill in the management and care of its wires, appliances, and electrical currents so as to prevent the entry into the building, where plaintiff's intestate was killed, of an electrical current that was more dangerous than necessary to reasonably conduct its business of lighting said building, and the plaintiff's intestate was thereby killed, then the law is for the defendant and they should so find. *** (6) By negligence is meant the failure to exercise that degree of care which a person of ordinary prudence usually exercises under like or similar circumstances. *** (8) Utmost care, as used in these instructions, means the highest care which careful and prudent persons are accustomed to observe under the same or similar circumstances." It will be observed that by instructions 1 and 2 before the jury could find for the plaintiff they must find that the defendant had negligently failed to exercise the utmost care which prudent persons are accustomed to exercise, and then in the sixth instruction they were told that negligence is the failure to exercise ordinary care. So, taking the three instructions together, the jury were in effect told that the defendant was not liable unless it failed to exercise ordinary care to exercise the utmost care and skill which prudent persons are accustomed to exercise under similar circumstances. It will also be observed that, while by the first and second instructions the defendant was required to exercise the utmost care and skill, by the eighth instruction the utmost care was defined as the highest care which careful and prudent persons are accustomed to observe under the same or similar circumstances.

This is not the standard of care which this court has laid down. In McLaughlin v. Louisville Electric Light Company, 100 Ky. 173, 37 S.W. 851, 34 L. R. A. 812, the first case on...