New Omaha Thomson-Houston Electric Light Company v. Anderson

• Decision Date: 05 January 1905
• Docket Number: 12,180
• Citation: 102 N.W. 89,73 Neb. 84
• Parties: NEW OMAHA THOMSON-HOUSTON ELECTRIC LIGHT COMPANY v. FRED ANDERSON, ADMINISTRATOR
• Court: Nebraska Supreme Court

102 N.W. 89

73 Neb. 84

NEW OMAHA THOMSON-HOUSTON ELECTRIC LIGHT COMPANY v. FRED ANDERSON, ADMINISTRATOR

No. 12,180

Supreme Court of Nebraska

January 5, 1905

ERROR to the district court for Douglas county: IRVING F. BAXTER JUDGE. Reversed.

REVERSED.

W. W Morsman, for plaintiff in error.

James H. Van Dusen, contra.

HASTINGS C. KIRKPATRICK and LOBINGIER, CC., concur.

OPINION

HASTINGS, C.

In this case the intestate of the plaintiff died August 9, 1899, as a result of an electric shock received by him while serving as a fireman in lowering a truck ladder by means of cranks. The ladder was so constructed with straps along its side that it presented metal corners capable of cutting the insulation on defendant's wires, and it had a metal connection from the top to the bottom capable of carrying down electric currents. The wooden spokes of the wheels of the truck on the platform of which the ladder was resting constituted an insulator, and the firemen in wet clothing holding the cranks by which the ladder was being lowered, and standing with wet feet upon wet ground, served to complete the ground connection, and a current down the ladder, through the cranks, and through the workmen to the ground was the result. The fire had occurred on the south side of Howard street, between Eleventh and Twelfth streets, in a building running back to the alley; 40 feet above the alley the defendant company had secured the right to maintain its conducting wires and was maintaining them there to the number of 11. The wires were carried on what is known as an "arch," a piece of timber resting upon poles at each side of the alley. The "arch" crossed the alley practically on a line with the west wall of the burning building. Of the 11 wires, numbering them from the south, the first, second and third were not touched by the ladder; the fourth and fifth constituted what is called "Opera House Circuit," and when in use carried a current of 2,000 volts; the sixth was one side of a street arc-light circuit, the other side passing back by another route; wires 7, 8 and 9 belonged to a secondary circuit used for supplying incandescent lights, and intended to carry a maximum current of 216 volts; the other two wires were used for supplying power, and when in operation carried a current of about 500 volts, according to the testimony. One witness says that the insulating material on the wires was apparently ragged, but no one claims that there was, before contract with the ladder, any uninsulated wire at the places of contact. The fire occurred about, or shortly after, five o'clock on August 9. A hose was laid from a hydrant near the intersection of the alley with the west side of Twelfth street, along the alley to the rear of the burning building. The truck, with this ladder, entered the alley at Eleventh street and came west until opposite the north end of the burning building. The truck stopped under the wires with the front toward the west and on the north side, so that by the slope of the alley toward its center line, the south side of it stood a little lower than the north. It carried an extension ladder which could be raised about 75 feet and which extended back from its base on the truck about 40 feet. It was raised by means of cranks and machinery attached to the front axletree of the truck. The machinery comprised a turntable, by which the ladder, when raised, might be turned through the use of the crank to face any desired direction. The ladder was of 700 or 800 pounds weight, and 32 inches wide. The "barrels" of the ladder were bound with iron straps, making sharp iron angles on the outside corners of the "barrels." It was old, and would sway from side to side, and spring up and down in the process of raising. Iron straps on its side were connected from the top to the bottom and with the machinery to which the cranks were attached. The truck also carried a portable ladder about 54 feet long, and others of various lengths from 18 to 35 feet, and a pair of insulated shears for cutting electric wires. The city electrician, Schurig, was present when the truck came into position. When the ladder was just commencing to be raised, the electrician was standing about 10 or 15 feet in front of the truck. Lieutenant Sullivan, now captain, in control of the truck, asked if the wires ought to be cut. The electrician replied that they should and that he would cut them if the lieutenant would clear the alley. The deceased did not, apparently, hear this. The upper end of the ladder came up against two wires, and Mr. White, one of the truckmen, went up and lifted these two wires off and placed them--number 6 to the south and number 7 to the north of the ladder. He hesitated about doing this, and was told by Schurig that the wires on the north were low-pressure ones, and that on the south was the arc-light circuit, and, if so, the truckmen would be all right; that the north one was harmless, and the south one dead at that time of day. The ladder then rested between these wires numbered 6 and 7, where it remained until finally removed. It was raised to a perpendicular position, and in the process approached the arch which was on a line with the west wall of the building. When it reached this perpendicular position it was some six or seven feet east from the arch. On the arch the wires were fastened 14 inches apart. It then extended four or five feet above the wires and was turned about, facing toward the south, and was permitted to incline south toward the burning building. The upper end remained five or six feet away from the north wall of the building. The ladder was then extended 25 feet more above the wires, and remained so until the fire was extinguished and it was ordered taken down. It was then once more drawn to a perpendicular position, brought by the use of the turntable so that the rungs were once more at right angles with the alley and with the wires, and by means of the cranks the men were proceeding to let it down between the same wires. They had not made to exceed two turns of the cranks, which would let the ladder move toward the east along the wires about two feet, when it caught upon the arc-light circuit wire numbered 6, on the south side. This prevented its coming further. Livingston, a fireman, started up the ladder to loosen it, declining to take officer Sullivan's gloves because they were wet. Defendant's lineman, Brinkman, who had come to the fire and was standing by, remarked, "That wire is dead" or "Those wires are dead." The ladder was then held fast on the south side by this wire numbered 6, and Livingston was unable to release it until it was raised nearly two feet. This was done, and he released the wire without shock. The ladder was not then in contact with wire numbered 5. Livingston went down, and with the other men proceeded to lower the ladder, making five or six revolutions of the cranks, when the shock was received by which four of the men were killed. The shock did not produce instant death or throw the men from the cranks, but rendered them incapable of letting go and held them until life was so nearly extinct that their bodies fell to the ground. The men were wet both by water and perspiration, and they were standing in pools of water and mud. Farmer and Livingston, who also had hold of the cranks, received only slight shocks. All the evidence goes to show that at the time of the electric discharge the ladder was in contact with wires 6 and 7 only; such is the testimony of the city electrician. It is hardly possible that there can be any error about this, for the ladder was left standing some time in the position in which it was when the shock came, and was not taken down until the defendant's lineman, Brinkman, had telephoned to the power station and had the currents through this alley all cut off.

The foregoing statement is drawn for the most part from the brief filed on behalf of the defendant company. Plaintiff's counsel, as to defendant's statement of facts in the brief filed, says: "I desire to state that it is in the main a fair statement, although I would not be willing to admit that all propositions therein stated were established by the undisputed testimony." The only important matter of fact as to which any dispute is found is concerning the insulation of the wires. The legal duty of defendant, as fixing the question of its negligence, is the main subject of dispute, together with the inferences to be drawn from the facts, and especially the extent to which the fact of a terrible casualty should be considered as establishing negligence on the principle of res ipsa loquitur.

The defendant claims that it owed no duty whatever to the fireman Hopper in reference to its lines. It is conceded that these firemen in pushing their ladder against defendant's wires were not trespassers, because they were acting in public right and were entitled to invade the defendant's property for the purpose of securing public protection against fire; but it is claimed that they were bare licensees who pushed their ladder against defendant's wires, without permission, for their own purpose, and at their own risk.

It is also urged that no defect of insulation, which was in any degree the company's fault, is shown to have had anything to do with the accident. The defendant admits that one witness, Rudousky, testified that the insulation on these wires near this place was ragged and hung in strings; but he did not testify, nor did any one else, that it was so at any spot where the ladder came in contact before its metal corners scraped the wires. Plaintiff's counsel, evidently, does not rely upon defects of insulation as sustaining the claim of defendant's negligence.

The averments of negligence in the petition, denied by the...