Neumann v. Interstate Power Co.
| Decision Date | 20 December 1929 |
| Docket Number | 27,410 |
| Citation | 228 N.W. 342,179 Minn. 46 |
| Parties | C. A. NEUMANN v. INTERSTATE POWER COMPANY AND ANOTHER |
| Court | Minnesota Supreme Court |
Action in the district court for Winona county by the special administration of the estate of O. H. Nelson to recover damages for his death alleged to have been caused by the negligence of defendants. Plaintiff recovered a verdict of $7,500 against both defendants. From an order, Gates, J. denying their alternative motion for judgment or a new trial defendants appealed. Affirmed.
Death from deadly electric current.
Suit to recover for death of plaintiff's intestate caused by the wrongful and negligent acts of defendants in maintaining and permitting the maintenance along a public alley in the village of wires carrying deadly electric current at too low elevation, uninsulated, and with no warning of the peril which deadly current came in contact with decedent as he was engaged in his work in proximity to the wires. It is held:
Defendants' negligence was for jury.
1. The evidence made defendants' negligence a question for the jury.
Compliance with § 7536 not enough as matter of law.
2. A compliance by public service corporations with the conditions under which they are permitted by G.S. 1923 (2 Mason, 927) § 7536, to maintain wires carrying electric currents along public streets and highways does not as a matter of law absolve them from negligence in respect to those injured by contact with such wires when engaged in their own pursuits upon their own premises in proximity to such wires.
Question of adequate warning was for jury.
3. Whether there was adequate warning of the deadly character of the current transmitted over the wires was for the jury.
Defendant village not entitled to judgment.
4. The defendant village was not entitled to judgment non obstante, since it had given permission to install the wires and had knowledge of the manner in which they were maintained.
Decedent not contributorily negligent.
5. The contributory negligence of plaintiff's intestate was not established as a matter of law.
No errors in charge.
6. There was no error of which defendants could complain in instructing the jury that the expense of higher elevation of the wires and their insulation might be taken into consideration in determining whether defendant power company had exercised the care the law requires.
Requested instruction came too late.
7. A requested instruction proffered orally at the conclusion of the charge comes too late.
Electricity, 20 C.J. § 67 p. 390 n. 75; § 68 p. 392 n. 92; § 69 p. 395 n. 1.
Judgments, 33 C.J. § 114 p. 1186 n. 57.
Trial, 38 Cyc. p. 1700 n. 28; p. 1702 n. 57.
See note in 34 L.R.A.(N.S.) 1090; 14 A.L.R. 1023; 9 R.C.L. 1211; R.C.L. Perm. Supp. p. 2617.
See note in 14 A.L.R. 1035; 9 R.C.L. 1202; R.C.L. Perm. Supp. 2613.
Briggs, Weyl & Briggs, for appellant power company.
James A. Carley, for appellant village of Lewiston.
Brown, Somsen & Sawyer, for respondent.
Defendants appeal from the order denying their motion in the alternative for judgment non obstante or a new trial. The action is to recover for the death of O. H. Nelson, plaintiff's intestate, alleged to have been caused by the wrongful act and negligence of defendants.
The short facts concerning Nelson's death are these: He and Dr. Moulton were tenants of a duplex situated on lot 4 in block 1 of Litcher's Addition to the village of Lewiston this state. There are no sewers in the village, but buildings with modern conveniences have cesspools. In 1926 a cesspool for this duplex caved in and, instead of repairing the same, another some 20 feet deep and 8 feet wide was constructed on the rear of the lot close to the line of the public alley. The lot fronted north on the main street of the village, upon which also was located state highway No. 7. On both sides of this street or highway the village was closely built up. The alley appears to have been little used. No one drove clear through it. Out-buildings and structures connected with the buildings fronting the highway were more or less close to the alley, but south of the alley appear no buildings, it being field or pasture. The cesspools had to be pumped or bailed out frequently. A four-inch pipe protruded some three feet above the surface or covering of the cesspool in question, and a 20-foot 1 1/2-inch iron pipe was provided to insert through the larger pipe into the cesspool, which could then be emptied by attaching a pump to the pipe.
The defendant power company, under a franchise duly obtained from the defendant village, for some years past has supplied its inhabitants with electrical current for light and power. On the north line of the alley mentioned, passing in rear of said lot 4, are 20-foot wooden poles, with a cross-arm at the top, upon which are strung four wires carrying electric current. The two middle wires are insulated and carry the harmless current of 110 volts. The outer wires are not insulated and carry a current of 2,300 volts, fatal to anyone coming in contact therewith when grounded. The poles carrying the wires past the cesspool were 123 feet apart, so there was a sag of the wires above the cesspool making their distance from the ground about 19 feet.
It was reported to Nelson or Dr. Moulton that the contents of the cesspool backed into their basement, and shortly after one o'clock in the afternoon of May 12, 1928, the two men went out to pump it out. A few minutes later both were found dead near the cesspool with the long iron pipe near, clearly showing that in raising the same to insert in the 4-inch pipe it had come in contact with one of the high voltage wires and the deadly current grounded through the two men having hold of the pipe. Their hands and feet had electric burns.
The complaint alleged three items of negligence of the defendant power company in respect to the construction and maintenance of these high voltage power lines, namely, too low elevation of the wires above the ground, want of insulation, and absence of warning that they carried a deadly current. The defendant village was charged with knowledge of the other defendant's negligence and that with such knowledge the wires were so maintained by the express authorization and permission of the village.
There is scarcely need of citing authorities holding that one who maintains wires transmitting so deadly electric current as the two outer ones here involved must exercise care commensurate with peril reasonably to be apprehended to those who may have occasion to come in proximity to them. In this court the high degree required of those who transmit electric currents of sufficient voltage to endanger life has been adequately pointed out in Gilbert v. Duluth G.E. Co. 93 Minn. 99, 100 N.W. 653, 106 A.S.R. 430; Musolf v. Duluth E.E. Co. 108 Minn. 369, 122 N.W. 499, 24 L.R.A.(N.S.) 451; Hoppe v. City of Winona, 113 Minn. 252, 129 N.W. 577, 33 L.R.A.(N.S.) 449, Ann. Cas. 1912A, 247; Davidson v. Otter Tail Power Co. 150 Minn. 446, 185 N.W. 644; Thornton Bros. Co. v. Northern States Power Co. 151 Minn. 435, 186 N.W. 863, 187 N.W. 610; Pattock v. St. Cloud P.S. Co. 152 Minn. 69, 187 N.W. 969.
But appellants insist they had no reasonable ground to apprehend that anyone would be likely to handle an iron pipe 20 feet in length in the vicinity of these wires. There was evidence that this pipe had always been used in emptying both the former and the present cesspool. The maintenance man or lineman of the power company knew of the present cesspool had seen the manner in which a cesspool was emptied on these premises, but claimed a hose and not a pipe was used. The conflict was for the jurors to settle. At any rate it was for them to say whether defendants should not have apprehended the peril inherent in these uninsulated, high current wires overhanging this cesspool and near other structures adjacent to this...
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