Moren v. New Orleans Ry. & Light Co

• Decision Date: 14 March 1910
• Docket Number: 17,613
• Citation: 52 So. 106,125 La. 944
• Parties: MOREN v. NEW ORLEANS RY. & LIGHT CO
• Court: Louisiana Supreme Court

52 So. 106

125 La. 944

MOREN v. NEW ORLEANS RY. & LIGHT CO

No. 17,613

Supreme Court of Louisiana

March 14, 1910

Rehearing Denied April 11, 1910.

Appeal from Civil District Court, Parish of Orleans; John St. Paul Judge.

Action by Mrs. Linnie Cornelia Moren, individually and as guardian for Ruth Evelyn Moren against the New Orleans Railway & Light Company.Judgment for defendant and plaintiff appeals.Reversed and rendered.

Bernard Bruenn and A. W. Cooper, for appellant.

Dart Kernan & Dart, for appellee.

MONROEJ. PROVOSTY, J., dissents.

OPINION

MONROE, J.

Statement of the Case.

Plaintiff sues in her own behalf and in behalf of her minor child, issue of her marriage with her deceased husband, for damages for injuries to the latter, resulting in his death, which injuries she alleges were caused by the negligence of the defendant.The answer is a general denial, coupled with a plea of contributory negligence.

The facts, as we find them, are as follows: The decedent had been employed by the Cumberland Telephone & Telegraph Company, at Memphis; had then gone into some other business; had returned to the telephone company, and had been employed by it for about two years at Covington, from which place, about two months before the accident out of which the suit has arisen, he had been transferred to New Orleans.At the time of the accident he was discharging the functions of "trouble man," and on the morning of March 16, 1907, he went to the corner of Chestnut and Peniston streets to remedy a trouble which he appears to have located at that point.The wires of the telephone company were strung near the top of a creosoted or carbolineum pole, which stood upon the lower, lake-side, corner, and upon the same pole, some 15 or 16 feet lower down, and about 30 feet from the ground, were 3 cross-arms, upon which were strung the wires of the Railway & Light Company, defendant herein, the telephone wires running along and in the direction of, Chestnut street, and those of the Railway & Light Company running at a right angle with them along Peniston street.The currents of electricity carried by the wires of the defendant meant certain death to any one who touched a wire not properly insulated, and there were 6 such wires upon the cross-arms mentioned; one, upon the upper cross-arm, which supplied the street lights of the city, and from which at the time of the accident the current was probably shut off; two, called "primary" wires (carrying 2,300 volts), upon the next cross-arm, 18 inches below; and three, called "secondary" wires, upon the third arm, which was 18 inches below the one last mentioned.The cross-arms were, say, 8 feet long, and the primary wires were strung on either side of, and about 3 feet from, the pole.Of the three secondary wires, two were strung on one side of the pole, the nearest, about 2 feet distant, and the other, about 3 feet, and the third wire was strung upon the other side of, and 3 feet distant from, the pole.In order to reach the telephone wires, therefore, for the purpose of making repairs or other purpose, it was necessary that the workman should ascend between the power and light wires and the pole, and, where a new wire was needed (for the telephone service), it was necessary that, whilst, himself, so ascending, he should pass such new wire around upon the outside of the power and light wires.Moren appears to have reached the scene about 8 o'clock in the morning and to have spent some time in investigation, during which he ascended the pole to the place where the telephone wires were strung.He then concluded that he needed assistance, and about 10 o'clock went to a residence in the neighborhood, and telephoned the main office of his company to that effect, and the man who received the message, and whose duty it was to attend to such matters, answered, telling him to "let the line go" until 1 o'clock, at which hour a helper would be sent to him.He, however, appears to have decided that, rather than wait, he would endeavor to go on with the job by himself, and shortly after he had sent the message he climbed the pole, carrying with him the end of a wire which came from a reel that was lying on the Chestnut street banquette, some 20 or 30 feet away, and he reached the cross-arms upon which defendant's wires were strung, and, whilst there, received a shock, and the next that was seen of him he was holding on to, and at the same time trying to fight himself loose from, one of the 2,300 volt wires on the middle cross-arm.The only witness who saw him at that moment was Mrs. Landry, who lived in one side of the double tenement in front of which the pole in question was situated, and she described what she saw as follows:

"While I was on my gallery, I was attracted by a peculiar noise, and I turned around and saw this man on the pole, and he seemed to have been holding his wires, or something, and sparks came out of his hands, and the man fought himself away from those wires and simply fell, and, when he struck the ground, he grunted, and that is all.* * * Q.What kind of a noise?A.It was just going as if something was frying."

The attention of William Dodge was attracted by a boy, who said, "Just look at that man falling," and Dodge looked, barely in time to see the body of Moren strike the wooden crossing over the gutter.He did not see the beginning of the fall, nor, did he go near the injured man after he fell.Moren was moved from the wooden crossing upon which he fell into Mrs. Landry's yard, but by whom the record does not show.Mrs. Behrens and Mrs. Govan, who live quite near, found him in the yard, and he told Mrs. Behrens that he fell because "he had to let go; that he was burning up."Dodge did not know whether he had gloves on or not, and neither of the ladies mentioned saw any gloves when they reached him, in the yard.They did not look about the place where he had fallen.A negro gardener, who was at work in Mrs. Behrens' yard, upon the corner diagonally opposite to that upon which the accident happened, testifies that Moren ascended to, and fell from, the top of the pole, and, catching on the power and light wires, fell from there to the ground.He thinks he had on gloves.Moren was taken, in the hospital ambulance (after being afforded some relief by the student in charge), to his home, and was thereafter treated by Dr. Dabney, who says:

"He suffered excruciatingly.* * * His suffering was constant * * * until he died. except in brief intervals when he was under pain-alleviating drugs."

The doctor also says that he died of lockjaw on June22d. E. L. Powell, division superintendent, and Loyd Dietz, chief city wireman, of the telephone company, called on Moren on the day of the accident, and they testify that he said that he, and not the "trouble man" at the office, was to blame.Powell's testimony reads, in part as follows:

"He said that he went up there to put a broken line in, and that, when he first arrived at the scene of the break, he thought it was a dangerous thing to attempt to put up the wire by himself; that he called up the trouble department of the telephone company, and, in talking to the young man in charge of the trouble desk, he explained just the condition, and told him that he was afraid to put up the wire by himself.The young man in charge instructed him not to put up the wire; that he would send a man up there to help him, * * * about 1 o'clock.He says, 'You just get it out of danger.'Mr. Moren told me that, after waiting a few minutes, being in a hurry, as he had other work, he decided that he could put the wire up himself, and he undertook to do so; and, in attempting to pass the telephone wire over the electric wire, his arm got too close to the electric light wire and it seemed to be drawn to the electric wire, he didn't know how, but that the whole thing occurred in a very short space of time, just as he was raising the wire over, and he received a shock and a burn.I asked him if he thought anybody was at fault in the matter, at all, and he said, no, he did not blame anybody.He said: 'I ought to have known better than to have attempted to put that wire up myself;' and he said that the trouble chief * * * told him not to try it.Q.What appliances does the telephone company require its men to have in doing this kind of work?A.When putting up broken wires, and particularly, when putting them up in a dangerous locality, the men are required to use a hand line, a rope; instead of attempting to draw the wire over, they pass the rope over from a safe position, and pull it out of the way.They are also required to have rubber gloves.Q.Did Mr. Moren tell you whether he used any one of these appliances?A.I didn't ask him and he didn't tell me. * * * The immediate cause of the accident was undoubtedly, in my mind, coming in contact -- that is, the telephone wire that he held in his hand -- with the electric wire, or it came in contact with his arm or hand.* * * Q. Your company owns that pole?A.Yes, sir.* * * Q.Therefore your company had to give permission to the Electric Light Company to string its wires on it?A.Yes, sir; there was an agreement, either with the New Orleans Railway Company or with the Edison Company.I think the agreement is an old one with the Edison Company.* * * Moren was quite a reliable, honest, sober, and industrious man," and he was regular in his work.

Dietz after testifying that he had been for 12 years in the employ of the telephone company, that he had instructed Moren as to the danger of passing through electric wires, that he had himself "many times" climbed upon the pole upon which the accident happened, and that there was room enough, between it and the power and light wires, for him to pass in...