McLaughlin v. Louisville Electric Light Co.

• Decision Date: 25 November 1896
• Parties: McLaughlin v. Louisville Electric Light Co.
• Court: Kentucky Court of Appeals

100 Ky. 173

McLaughlin v. Louisville Electric Light Co.

Court of Appeals of Kentucky.

November 25, 1896.

APPEAL FROM JEFFERSON CIRCUIT COURT, COMMON PLEAS DIVISION.

JUNIUS C. KLEIN FOR APPELLANT.

PHELPS & THUM FOR APPELLEE.

GIBSON & MARSHALL ON SAME SIDE.

O'NEAL, PHELPS & PRYOR OF COUNSEL ON SAME SIDE.

GIBSON & MARSHALL, O'NEAL & PRYOR AND PHELPS & THUM IN PETITION FOR REHEARING.

JUDGE GUFFY DELIVERED THE OPINION OF THE COURT.

It is alleged in the petition in this action that "the plaintiff is and was on the 8th day of July, 1893, a painter by trade, and followed the same for a livelihood, and was on said 8th day of July, 1893, engaged in painting a house on the east side of Fourth street, in the said city of Louisville, between Market and Main streets, and numbered ___; that on said 8th of July, 1893, and long prior thereto, the defendant, its agents and servants had erected and maintained one of its electric wires, charged with electricity, on the side of said house facing Fourth street; that the said wire on the said 8th day of July, 1893, and long prior thereto, was insufficiently, carelessly and negligently insulated, and that defendant, its agents and servants were well aware of said want of insulation, or could have been aware of same by the exercise of proper diligence; that plaintiff on said 8th day of July, 1893, while in the discharge of his duties as painter aforesaid and without fault on his part, came in contact with said wire which at the said time was heavily charged with electricity by the defendant, its agents and servants whereby he was severely shocked and rendered insensible, and that he remained insensible and unconscious for twenty minutes and more; that he suffered severe pain, both physically and mentally, by reason of said shock, and that the flesh on his left hand was burnt and blistered to such an extent as to render the said hand useless, and that ever since and now said plaintiff is unable to use said hand in the performance of his vocation as a painter; that plaintiff is rendered less able thereby to make a living at his trade as a painter; that the said injuries received by the plaintiff are permanent, and his entire nervous system, by reason of said shock, is unbalanced, causing plaintiff much and severe pain; that the said injuries complained of herein were caused wholly by the gross negligence of the defendant, its agents and servants, that the plaintiff has been damaged, by reason of said injuries, in the sum of two thousand five hundred dollars. Wherefore, plaintiff prays judgment against the defendant for the sum of two thousand five hundred dollars, and for his costs and for all proper relief."

The defendant filed a demurrer to the petition which was overruled by the court.

The first paragraph of the answer substantially denies all the averments in the petition which show any right to recover.

The second paragraph of the answer is as follows: "Further answering this defendant says that the injuries received by the plaintiff, and set forth in the petition, were received wholly and entirely because of his want of proper care and caution in looking out for his own safety, and by reason of his carelessness in coming in contact with an electric light wire which he knew, or by the exercise of ordinary care for his own safety could have known, was then and there charged with a current of electricity, making it dangerous to life for any one to come in contact with the said wire. Defendant says that by the exercise of ordinary care for his own safety, and such as circumstances and surroundings made it apparent was necessary, the said plaintiff could have avoided coming in contact with said wire, and could have escaped all injury therefrom. Defendant says that plaintiff came into contact with said wire by failing to exercise that degree of care which he knew, or ought to have known, under the circumstances was necessary to be exercised by him to avoid injury from said wire. Wherefore, having answered, defendant prays to be dismissed."

The reply of plaintiff traversed the allegations of the answer. The jury found for the defendant, and his petition was dismissed.

Appellant relied on these grounds for new trial, viz:

1st. That the court erred in refusing to instruct the jury as requested by plaintiff in instructions Nos. 1, 2, 3, 8 and 9.

2d. That the verdict of the jury is not sustained by sufficient evidence.

3d. That the court erred in not excusing a juror, William Pryott, for cause, he being a stockholder in the Louisville Gas Co., and it being the owner of the stock in the defendant company.

The motion for new trial was overruled, and plaintiff has appealed.

The plaintiff below (appellant here) testified in substance as follows: "S. T. McLaughlin testified that he was twenty-two years of age, and a house painter by trade; was a contractor in that line, and had the job, in conjunction with Asa Carr, of painting the front of H. C. Green's hotel, known as the Fourth Avenue Hotel, and had almost finished the work on the 8th day of July, 1893, when he came in contact with one of the defendant's electric wires, near the side of a window, and received a shock; that the defendant had two wires running from the west side of Fourth street, in Louisville, Ky.; that these two wires were fastened to brackets attached to the side of the wall between the first and second windows of the hotel, counting from the north; these windows were on the second floor of the building; the first floor was occupied by business firms; that these brackets were fastened to the wall about six inches from each window and about five feet above the sill of the windows; that defendant had an iron box, called a converter, attached to the side of the hotel building, midway between these two windows; that this box was about a foot above an iron cornice, running the full length of the building, immediately below the windows, about six inches below; that these two wires ran from the brackets to the top of this converter or box; that plaintiff was shocked by the wire next to the north side of the second window, at a place where the wire was joined together, and about halfway between the bracket and the converter; that this wire ran down from its bracket along the side of the window, and six inches from the window, for about two feet, and then turned over north to the converter; that the iron cornice was about twelve inches wide, space enough for a man to stand on conveniently and paint; that he and his men had to use this cornice to work from, as there were wires preventing the staging or swinging ladder from being let down between them; when he had painted down to the bracket and wires he pulled the staging up out of the way and painted around the wires and the iron box while standing on the iron cornice; the window sill was outside, about five inches by five inches, and rested on the iron cornice inside of wood, about a foot wide; that he had put several coats of paint on the house, and was through, with the exception of touching up the right hind ear of the iron box; that he was in the act of getting out of this second window on the cornice to touch up this ear when he received the shock; that he had taken his brush full of paint in his right hand, and nothing in his left, and was on the sill of the window, turning back out onto the cornice, when he used his left hand to steady himself against the north side of the window opening, when his hand came in contact with the wire and he received the shock which rendered him unconscious, and he did not know anything more for about a half an hour, when he was revived, and found himself inside of the house, with Asa Carr, W. J. Cody his employe, and Mr. H. C. Green working with him to revive him; that his left hand was burnt and blistered on the third and fourth fingers, and at the edge of the palm at base of small finger; that he suffered a great deal at the time of the shock and long afterward; that he went home and went to bed for a week; that he has never fully recovered the full use of his left arm and hand; that he has not been able to work at his trade or calling on account of the weakness of his hand; that he can not properly handle the brush and ropes; that in his trade it requires strong hands and arms to hoist and lower one's self on the staging; that he has not had any work at his trade at all; that he did and is working as a hand on the steamer ______, plying between Louisville and Cincinnati; has worked about two months; that there was no sign or anything else to warn him of a danger about or near those wires."

On cross-examination said S. T. McLaughlin testified that "no one warned him at any time about those wires; that he did not know Squire Green, but did know Mr. Green, proprietor of the hotel; that Squire Green did not tell him to keep away from those wires; did not see Squire Green around the building the day before the accident; Squire Green did not offer to cut the wires if he wanted it done, nor did he tell Squire Green he could get along without the wires being cut; that no one told him that the wires were alive or dangerous; that he knew electric wires were dangerous, but that he had been working around the wires all the week and all seemed to be insulated, and yet he was not hurt; that he did not know electricity was turned on; that it was about noon of the 8th day of July, 1893, that he was hurt; that he saw no lights about the building; that he came up to the office of the defendant one Sunday night whether the first Sunday after the accident or not he did not remember; was there because Mr. Smith had sent for him; did not tell Mr. Smith or any one else that he was not hurt or was scared more than hurt, and did tell him then and there that he was hurt, and showed him his hand and pointed out places where it was burned; that he did not meet Squire Green every other Sunday on Third and Jefferson streets. Witness then showed...