McClaugherty v. Rogue River Elec. Co.

• Decision Date: 07 April 1914
• Citation: 73 Or. 135,140 P. 64
• Parties: MCCLAUGHERTY v. ROGUE RIVER ELECTRIC CO.
• Court: Oregon Supreme Court

140 P. 64

73 Or. 135

MCCLAUGHERTY v. ROGUE RIVER ELECTRIC CO.

Supreme Court of Oregon

April 7, 1914

In Banc.

Appeal from Circuit Court, Jackson County; F. M. Calkins, Judge.

Action by Joseph P. McClaugherty against the Rogue River Electric Company. From a judgment for plaintiff, defendant appeals. Affirmed.

This action is brought under the Employers' Liability Act, c 3 (Laws 1911, p. 16), to recover $25,000 damages for the death of plaintiff's son, alleged to have been caused by defendant's negligence. The jury returned a verdict for $12,500. The court entered judgment thereon, from which defendant appeals.

James McClaugherty, the deceased, met his death May 27, 1911, from an electric shock. He was at the time in the employ of the defendant, and was of the age of 20 years 7 months and 10 days. His experience and knowledge in handling electricity had been gained during his employment by the defendant company for a period of between 8 and 9 months. He was told by the superintendent of the defendant to go to the cyanide plant about 1 1/2 miles from Jacksonville, where he would find a 2,300-volt motor which he was required to install for the Clark & Henery Construction Company. On being so directed, he requested the superintendent to give him an assistant; but this request was not complied with. He was informed that he could get a common laborer to help him raise the poles, and that the Clark & Henery Company would probably furnish a man. The work required the running of three 2,300-volt wires from the motor to three 2,300-volt wires on a pole in the main line, and there making the connections. For this it was necessary to put a cross-arm on the pole immediately under the 2,300-volt wires. This pole carried one 2,300-volt wire on top, two immediately under it, one on either end of a cross-arm, and three 440-volt wires, two on one side of the pole, and one on the other. Underneath these were two telephone wires of the defendant usd in connection with its plant. The evidence tended to show that the telephone wires, which are regarded by electricians as dead wires, might become charged with electricity in rainy weather by induction from the live wires, which would, of course complete the circuit, if brought in contact with one of the live wires either directly or through the medium of any body capable of conducting electricity. None of the wires were insulated, and the evidence of plaintiff tended to show that the distance of the wires from the pole, and from each other was such that the place where the wires were charged with electricity was an unsafe one in which to perform the work at which the deceased was engaged at the time of the accident that the defendant had placed cut-out switches or plugs at two points along this line between the power house and the place of the accident, one of which was in a substation at Jacksonville, a mile and a half from the scene of the injury and the other on a pole about one-half mile from where the accident occurred. At this time the employés of defendant were divided into three classes: Groundmen, who were paid 28 cents per hour, linemen, who worked on live wires under direction, 32 cents per hour, and qualified linemen doing all kinds of work, including that on live wires, without supervision, 35 cents per hour. The men were advanced as their proficiency increased. Immediately prior to the time of the decedent's death he was working on live wires under direction, and receiving 32 cents per hour. When the work in question came up, the superintendent asked McClaugherty if he would like to take the job, and he appeared willing and anxious to do so. He was sent to do the work alone, receiving no particular instructions as to the manner of doing it. Nothing was said as to whether he should do it hot or cut off the electricity from the lines. The bill of exceptions discloses that the evidence of the plaintiff tended to show the location and arrangement of the wires on the poles, the distances between the poles and the wires, and the distances between the several wires, all of which warranted the jury in finding that the place was not a safe one, while the wires were charged with electricity, for James McClaugherty to perform the particular work he was required to do, by reason of the wires being too close to the poles, too close to each other, and not insulated; that he met his death from an electrical shock while performing the work he was sent to do, the shock being received by reason of the fact that the place where he was working was a dangerous and unsafe one in which to do the particular work he was performing, while the wires were charged with electricity, the 440-volt wire being 20 inches from the pole, and the only designation that would make the voltage wires instantly apparent being the extra large glass insulators on the top wires, the 440-volt wire having only ordinary insulators.

The brief of defendant states the following: "For the purpose of this appeal only, it is conceded that the state of the evidence was such as to make it a question for the jury whether the deceased was sufficiently qualified and experienced to be sent to do this work, without definite instructions, and to be intrusted with the discretion of looking after the safety of the place in which he worked."

The deceased left no widow or lineal heirs, and no mother surviving him. The plaintiff is the father of the deceased, and has resided in Texas continuously for many years.

Porter J. Neff, of Medford, and A. C. Hough, of Grants Pass (Neff & Mealey, of Medford, on the brief), for appellant. A. E. Reames, of Medford, for respondent.

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

The part of the Employers' Liability Act particularly applicable provides as follows: "In the transmission and use of electricity of a dangerous voltage full and complete insulation shall be provided at all points where the public or the employés of the owner, contractor or subcontractor transmitting or using said electricity are liable to come in contact with the wire, and dead wires shall not be mingled with live wires, nor strung upon the same support, and the arms or supports bearing live wires shall be especially designated by a color or other designation which is instantly apparent and live electrical wires carrying a dangerous voltage shall be strung at such distance from the pole or supports as to permit repairmen to freely engage in their work without danger of shock." Then follows the provision: "And generally, all owners, contractors or subcontractors and other persons having charge of, or responsible for, any work involving a risk or danger to the employés or the public, shall use every device, care and precaution which it is practicable to use for the protection and safety of life and limb, limited only by the necessity for preserving the efficiency of the structure, machine or other apparatus or device, and without regard to the additional cost of suitable material or safety appliance and devices." Section 4 of the act is as follows: "If there shall be any loss of life by reason of the neglects or failures or violations of the provisions of this act by any owner, contractor, or subcontractor, or any person liable under the provisions of this act, the widow of the person so killed, his lineal heirs or adopted children, or the husband, mother, or father, as the case may be, shall have a right of action without any limit as to the amount of damages which may be awarded." Plaintiff complains that defendant violated the statute in the following particulars: (1) That the wires were not insulated where the employés were liable to come in contact with them; (2) that dead wires were mingled with live wires; (3) that the electric wires were so close to the poles that the workmen engaged in their work were in danger of a shock; (4) that the arms or supports bearing the live wires were not properly designated by color or otherwise; (5) that the cut-off switches were not near enough to the required work to make the use of the same practicable, and that an experienced electrician should have been immediately present to superintend and warn the operator, and that it was necessary for the company to have rules and specific regulations for the protection of the employés directing how the work was to be done. It is sufficient to say that the evidence tended to show a failure on the part of the defendant to comply with the terms of the statute, which is negligence per se. Peterson v. Standard Oil Co., 55 Or. 511, 106 P. 337, Ann. Cas. 1912A, 625; Burroughs v. C. L. Co., 58 Or. 270, 275, 114 P. 103; Morgan v. Bross, 64 Or. 63, 129 P. 118.

Mr Loder, superintendent of the company, when questioned by a juror, testified: "Q. Let me ask--did you, as superintendent of construction, tell this boy he should cut the current off to make connection with hot wires? A. No; I didn't tell him to do so. * * * Q. Is it your judgment to-day that it wasn't lack of judgment on McClaugherty's part in failing to turn off the current? A. Well, as I feel to-day, and as I felt then, is tempered by experience of subsequent things that have happened. I might say to-day that a man ought to have pulled those plugs, where, at that time, I might have--I certainly did feel that he was perfectly able and perfectly capable to do that job, and I may have felt and possibly said that it was all right. Q. Yes; I understand there are things happened to change your judgment. I will ask you if now, to-day you would tell him, James McClaugherty, to turn that current off, or do the job hot or cold? A. You bet your boots I would tell him to turn that current off. Q. Did you tell him? A. No, sir. Q. And the company didn't have any rules whether a man was to turn the current off,...