Musolf v. Duluth Edison Electric Company

• Decision Date: 09 July 1909
• Docket Number: 16,155 - (168)
• Citation: 122 N.W. 499,108 Minn. 369
• Parties: LYDIA A. MUSOLF v. DULUTH EDISON ELECTRIC COMPANY
• Court: Minnesota Supreme Court

122 N.W. 499

108 Minn. 369

LYDIA A. MUSOLF v. DULUTH EDISON ELECTRIC COMPANY

Nos. 16,155 - (168)

Supreme Court of Minnesota

July 9, 1909

Action in the district court for St. Louis county by the administratrix of the estate of Stanley R. Musolf, deceased to recover $5,000 for the death of her intestate, while in the employ of the Zenith Telephone Company as a telephone lineman. The negligence alleged is stated in the first paragraph of the opinion. The answer set up a payment of $1,000 by the company insuring the Zenith Telephone Company against accidents to decedent's next of kin in full satisfaction for his death. The case was tried before Ensign J., and a jury which returned a verdict in favor of defendant for the sum demanded. From an order denying defendant's motion for judgment notwithstanding the verdict or for a new trial, it appealed. Affirmed.

SYLLABUS

Death of Telephone Lineman from Electric Current of Another Company.

Deceased, an employee of a telephone company, while working on its wires suspended between poles, was killed by electricity communicated through contact of a heavily charged wire of defendant electric company with a wire of which deceased took hold when it was raised to him by another servant. It is held:

1. Defendant's negligence was for the jury. The evidence of defective insulation, uninspected for six years, presented a question of fact. Deceased was on the premises of his employer, and was neither a trespasser nor a licensee.

2. Defendant owed him the affirmative duty of exercising commensurate care to protect him from danger due to its wires carrying a dangerous current. Whether the failure of defendant to properly insulate its wire was the proximate cause of the damages was for the jury.

3. Deceased was not as a matter of law guilty of contributory negligence, nor was his death as a matter of law due to negligence of a fellow servant.

4. An instrument whereby plaintiff agreed not to sue the telephone company unless it should be held as a matter of law that plaintiff could not recover damages against the defendant company, and unless the consideration paid should be returned to the telephone company, is construed to be a covenant not to sue, and not a release. Plaintiff was not precluded thereby from enforcing liability against defendant.

5. That instrument did not purport to be, and did not operate as, a partial satisfaction. Defendant was not entitled to deduct its consideration from the amount of the verdict.

6. Alleged trial errors do not justify reversal.

E. C. Kennedy, for appellant.

A. E. McManus, for respondent.

OPINION

JAGGARD, J.

This action was brought by plaintiff, as administratrix, respondent herein, of the deceased, to recover from defendant and appellant damages for the death of the said deceased while in the employ of a telephone company on May 22, 1908. The deceased was working at the upper cable, suspended between poles of the telephone company some eight or ten feet above defendant's wires. All wires were many feet above the ground. His helper had pulled a platform up to him in accordance with custom, and then at the request of the deceased took a piece of wire from a coil on the ground, which was coiled up there for that purpose, and by means of a rope drew it up to deceased. The piece of wire sent up was too short for its intended purpose. Deceased asked him to send up another and longer piece. The assistant procured such a piece, coiled it up, tied it to the rope, and was pulling it up to deceased, when the wire became uncoiled. One end of it came in contact with the wires of defendant and appellant, heavily charged with electricity. As it came up to the platform, deceased reached over and, instead of grasping the rope to which the wire was attached, took hold of the wire itself with his left hand. The current was grounded through the deceased, who had put his right hand on some other substance, passed through him, precipitated him to the ground, and caused his death. The negligence with which the defendant was charged was "that the defendant strung and maintained two wires through which was transmitted a heavy electrical current upon poles of the telephone company, and that the wires so strung and maintained by the defendant were negligently and improperly insulated; that the electrical current passing through them was dangerous and fatal to human life, and a menace to the public and any one who should come in contact with or near the wires." The jury returned a verdict of $5,000. This appeal was taken from the denial of the usual motion in the alternative.

1. The defendant contends that it was not guilty of actionable negligence. The testimony was sufficient to justify the jury in finding that the insulation on defendant's wires was "frayed," "bad," "burned," "ragged strips hanging from it." "There were threads hanging here and there." The wires had been strung six years before the accident, and had not been inspected since that time. It sufficiently appeared that if the wire had been properly insulated the current could not have "leaked" in the manner in which it did, unless there had been "quite a spell" of wet weather. The questions as to immediate climatic conditions and as to improper insulation were fairly of fact for the jury.

Defendant urges, however, that deceased was either a licensee or a trespasser. It insists: "The poles, upon which were strung the wires of the Zenith Telephone Company and the wires of the defendant, Duluth Edison Electric Company, were used and occupied by both companies by a common understanding between them. The electric company had the right to use the poles of the telephone company, and the telephone company had the right to use the poles of the electric company, for stringing and operating their wires for the respective purposes of the different companies." Accordingly, the deceased, while acting within the scope of his employment, was a licensee; but "if he meddled was a licensee; but "if he meddled with the wires of the defendant electric company or used them for purposes other than that for which they were intended, then he was a trespasser in his relation to the defendant company, and in either case of licensee or trespasser the same degree of care is not charged upon the defendant company as would be in case of a person upon a public highway, or one who uses electricity furnished by it as a commodity, under the rule announced by this court in Gilbert v. Duluth General Electric Co., 93 Minn. 99," [100 N.W. 653, 106 Am. St. 430.] Plaintiff, on the other hand, contends that deceased was neither a licensee nor a trespasser, but was on the wires stretched between the poles of the telephone company; that is, that he was on the premises of his master. In point of fact the trial court charged, in effect, that plaintiff at the time of his death was working on the wires of the telephone company, suspended from the poles of the telephone company. No exception was taken to this charge, and no assignment of error is directed to it. It appears from this and, although not so clearly, from other parts of the record, that the ownership of the poles by the employer of the deceased was assumed on trial. It must therefore be so assumed here. It follows that plaintiff was upon his master's premises, and was not a licensee or a trespasser.

Defendant's duty under the circumstances was clear. The use of electricity, a "silent, deadly, and instantaneous force," is governed by the law of negligence, not by the principles of insurance of safety. See New Omaha v. Anderson, 73 Neb. 84, 102 N.W. 89. In this respect it is an exception to the general rule of insurance of safety applied to similarly dangerous instrumentalities. The persons employing so terribly dangerous a force can exonerate themselves, however, only by showing the exercise of greatest diligence. The exercise of commensurate care on the part of defendant company, therefore, required at least that the insulation of the kind used be in good and operative condition. It appears from the testimony that the assistant frequently sent up wires to the cable splicer at different places, including this same place and the same platform and to the deceased himself. It also appears that the wires were frequently sent up, "generally coiled," and, "remaining that way," would safely pass defendant's wires. Our attention has been called to no testimony that this was, however, the invariable custom. Inferentially, they might sometimes have been sent up uncoiled. In wet weather -- and it is to be remembered that defendant emphasized the fall of rain about this time -- the wet rope attached to a coil would naturally be inclined to transmit the current to one handling the rope as deceased was doing; would, if the coil of wire had come in contact with defendant's wires, if defectively insulated. Under the circumstances it is clear that the defendant owed to the plaintiff the affirmative duty to take care. See, for example, Snyder v. Mutual Tel. Co., 135 Iowa 215, 112 N.W. 777, 14 L.R.A. (N.S.) 321; Cf. Smith v. Twin City Rapid Transit Co., 102 Minn. 4, 112 N.W. 1001; Pittsburgh Rys. Co. v. Chapman, 145 F. 886, 888, 76 C.C.A. 418. The finding of the jury that defendant failed to exercise due care in insulating its wires and thereby violated its duty to plaintiff must be sustained.

In none of the authorities to which defendant directs our attention was the person injured upon the premises of his master as was this deceased. In Hector v. Boston, 161 Mass. 558, 37 N.E. 773, 25 L.R.A. 554, the lineman was on the roof of a city house. It did not there appear that the defendant had invited or licensed plaintiff to go where he was when he was injured. To Rowe v. Taylorville, 213 Ill. 318, 72 N.E....