Norfolk Ry. & Light Co v. Sprat-ley

• Citation: 49 S.E. 502,103 Va. 379
• Court: Supreme Court of Virginia
• Decision Date: 12 January 1905
• Parties: NORFOLK RY. & LIGHT CO. v. SPRAT-LEY.

49 S.E. 502

103 Va. 379

NORFOLK RY. & LIGHT CO.

v.SPRAT-LEY.

Supreme Court of Appeals of Virginia.

Jan. 12, 1905.

electricity—injury from live wire—presumption of negligence — rebuttal of presumption — evidence — sufficiency — proximate cause — harmless error — expert testimony—instructions—damages.

1. Electric companies are not insurers against accidents, but they are held to a high degree of care in the construction and maintenance of their dangerous appliances.¶ 1. See Electricity, vol. 18, Cent. Dig. §§ 7, 9.

2. The fact that a child was injured by picking up a live electric wire which had fallen to the sidewalk created a presumption of negligence on the part of the corporation owning and maintaining the wire.

3. In an action for injuries sustained by a child by picking up a live electric wire that had fallen to the sidewalk, the testimony of a lineman that he looked over the wires every day, and that between 6 and 7 o'clock in the morning of the day of the accident he had looked over the wire in question, and had found it all right, was not sufficient to remove the presumption of negligence on the part of the corporation owning and maintaining the wire.

4. The presumption of negligence which arises from an injury to a pedestrian in a public street from a broken electric wire is not overcome by testimony of employes of the one owning and maintaining the wire that the wire was properly constructed and put up.

5. Though a question asked a witness and his answer thereto are improper, if the propounder's case has been completely made out otherwise the error is harmless.

6. Though exception to the testimony of a witness is well taken, if the same fact is proved by other witnesses without objection the error is harmless.

7. In an action for injuries to a child caused by his having picked up a live electric wire that had fallen to the sidewalk, a witness testified that two women were struck in the face by the wire, but not injured, and that the child grasped it at a point where it was not insulated, and that he thought he (the witness) took hold of it at a place where it was insulated without being hurt. Held, that such evidence did not show that a lack of insulation, and not the falling of the wire, was the proximate cause of the injury. 8. In an action for personal injuries, it was proper to permit the physician who attended plaintiff to testify as to the probable future effects of the injuries.

9. In an action for personal injuries, the jury may consider, in addition to the expense and pain and loss already incurred and suffered, such as will reasonably and probably result as a consequence.

10. On appeal in an action for personal injuries suffered by a child, the question whether there was error in permitting his mother to testify that she had spent $7 for medicines was precluded by the maxim, "De minimis non curat lex."

11. Where no exception was taken to certain testimony when the question was asked the witness, and no bill of exceptions subsequently asked for, and there was no mention of such an assignment of error in the petition to the Supreme Court for a writ of error, the admissibility of the testimony could not be considered on appeal.

12. The verdict of the jury in an action for personal injuries could not be disturbed on appeal where there was nothing to show that the jury were actuated by prejudice or partiality.

Error to Law and Chancery Court of City of Norfolk.

Action by Herbert Wesley Spratley, by his next friend, J. W. Spratley, against the Norfolk Railway & Light Company. Judgment for plaintiff, and defendant brings error. Affirmed.

Richard B. Tunstall, for plaintiff in error.

Miller & Coleman, for defendant in error.

HARRISON, J. On the 14th day of June, 1903—a clear, bright day—Herbert Wesley Spratley, an infant seven years of age, in company with his little sister and their little companion, Mabel Blair, were en route to the cemetery in Berkley, a suburb of the city of Norfolk. While passing along Liberty street, Herbert was injured by coming in contact with a charged electric wire owned by the plaintiff in error, which had fallen across the sidewalk about two hours before the accident. He was playing with his sister, and. thinking the wire was a switch, picked it up to hit her, with the result that he was severely shocked and burned about his head, hand, and leg, and was rendered unconscious. These injuries confined him to the bed for four weeks, and to the house for six weeks or more.

This suit was brought by the injured child, in the name of J. W. Spratley, as next friend, against the defendant company, to recover damages for the injuries mentioned; and, upon a demurrer to the evidence, judgment was rendered in favor of the plaintiff for the sum of $2,000, the amount ascertained by the verdict of the jury. A writ of error was awarded, which brings the case to this court for review of errors alleged to have been committed at the trial.

It is contended that the demurrer to the evidence should have been sustained, because the defendant company was not shown to have been guilty of negligence.

This is a clear case for the application of the common sense rule of evidence express-ed in the maxim res ipsa loquitur. While electric companies are not held to be insurers against accident, still it is due to the citizen that such companies, permitted as they are to use for their own purposes the streets of a city or town, should be held to the exercise of a high degree of care in the construction and maintenance of the dangerous appliances employed by them, to the end that travelers along the highway may not be injured. The danger is great, and care and watchfulness must be commensurate with it, Haynes v. Raleigh Gas Co., 114 N. C. 203, 19 S. E. 344, 26 L. R. A. 810, 41 Am. St. Rep. 786; City Elec. St R. Co. v. Conery (Ark.) 33 S. W. 426, 31 L. R. A. 570, and note page 578; Joyce on Electricity, §§ 438, 606. A consequence of this rule as to the high degree of care required in the use of a dangerous current of electricity is the presumption of negligence that is raised by the fact that a dangerous wire has broken and fallen into the street. But it is insisted that the testimony of the witness Wiggins Fuller, introduced by the plaintiff, showed that the defendant company had exercised due care, and that this proof did away with the presumption afforded by the accident itself, and rendered some other evidence of negligence essential to the plaintiff's case. The testimony mentioned is that of an adverse witness, called, as such, by the plaintiff to prove the ownership of the wire in question, and that the witness had repaired it. Upon cross-examination by the defendant company, the witness testified that he was not the inspector, but was a lineman; that he looked over the wires every day; and that between 6 and 7 o'clock In the morning of the day of the accident he had looked over this wire and found it all right.

This evidence was not sufficient to remove the presumption of negligence arising from the accident itself. Upon the whole evidence, the question was one for the jury.

In Uggla v. West End St. R. Co., 160 Mass. 351, 35 N. E. 1126, 39 Am. St. Rep. 481, the plaintiff was struck by part of an iron ear used to clasp a trolley wire to keep it in place around a curve over the defendant's track. There was no evidence of fault on the part of the defendant, other than that afforded by the accident Itself. There was, however, evidence introduced by the defendant that it was not negligent, tending to show that the break was a clean one, bright in color and appearance; that the iron was sound all through, with no flaw or defect in it; that the whole apparatus was manufactured and put up by a manufacturer of the highest reputation; that the ear and guy constituted the best and strongest device known at the time for keeping trolley wires in place; that the defendant employed a corps of competent superintendents, foremen, and inspectors, who inspected the whole line weekly, including the cars and their attachments; and that this particular part of the line had been inspected within a week prior to the accident Notwithstanding this evidence of due care on the part of the defendant, the plaintiff was not called upon to introduce other evidence of negligence than the accident itself; the court holding that upon the whole evidence the question was for the jury, and sustaining their verdict in favor of the plaintiff.

The presumption of negligence arising from an injury to a passer-by in a public street from a broken electric wire is not overcome, so as to require the case to be taken from the jury, by testimony of defendant's employes that the wire was properly constructed and put up. Boyd v. Portland General Cement Co. (Or.) 66 Pac. 576, 57 L. R. A. 619.

The declaration in the case at bar, after setting out the duty of the defendant company to so operate, control, and maintain its wires that they would not fall upon or come in contact with pedestrians lawfully upon and passing along a public street and highway, avers that the defendant, in disregard of its duty in that behalf, so carelessly and negligently maintained, controlled, and operated its wire that it was broken, and negligently permitted to fall from the poles, and negligently permitted to remain upon the street, charged with an electric current, and that by reason of this negligence the wire came in contact with the plaintiff, and he was thereby severely shocked, burned, etc. At the conclusion of the testimony of George W. Wiggins, a witness for the plaintiff, he was asked the following question: "Did you notice the condition of...