Oesterreich v. Claas

• Decision Date: 07 January 1941
• Citation: 237 Wis. 343,295 N.W. 766
• Parties: OESTERREICH v. CLAAS et al.
• Court: Wisconsin Supreme Court

237 Wis. 343

295 N.W. 766

OESTERREICH

v.CLAAS et al.

Supreme Court of Wisconsin.

Jan. 7, 1941.

Dissenting Opinion Jan. 7, 1941.

Appeal from a judgment of the Circuit Court for Waukesha County; Henry Lockney, Judge.

Affirmed in part; reversed in part.

This was an action commenced on January 15, 1938, by Luella Oesterreich, administratrix of the estate of Walter Oesterreich, deceased, against Henry Claas and the Wisconsin Gas & Electric Company, a corporation, defendants, to recover damages for the wrongful death of Walter Oesterreich. The complaint alleges that plaintiff's intestate met his death by electrocution; that defendant Claas was negligent in inspecting and maintaining a pole and wires containing high voltage, and in failing to insulate the wires and to trim a tree in the vicinity; that as a result the wires were permitted to sag and come so close to the branches of an apple tree which deceased had climbed for the purpose of picking apples that he was caused to come in contact with the wires; that the Wisconsin Gas & Electric Company was negligent in transmitting electric current when it knew or should have known that the wires were dangerous to life and limb; that the company was also negligent in transmitting electricity through uninsulated wires in close proximity to the tree; and that it should have discovered and removed the condition prior to the death of decedent. There is also an allegation that the company failed to comply with provisions of the State Electrical Code. These allegations were put in issue by defendants, and the defense of contributory negligence set up. The case was tried to the court and a jury. At the close of plaintiff's case the trial court granted a nonsuit, and judgment dismissing plaintiff's complaint was duly entered on January 16, 1940. Plaintiff appeals. The material facts will be stated in the opinion.

FOWLER, J., dissenting.Max Raskin, of Milwaukee (Wm. F. Quick, of Milwaukee, of counsel), for appellant.

Lowry & Williams, of Waukesha, and Shaw, Muskat & Paulsen, of Milwaukee (Seth W. Pollard, of Milwaukee, of counsel), for respondents.

WICKHEM, Justice.

Plaintiff's intestate was instantly killed by electrocution while picking apples in an orchard on the farm of Amanda Raasch in Waukesha county. It is undisputed that he came into contact with a wire carrying 4800 volts of electricity which ran somewhere in the vicinity of the apple tree. Its precise location is one of the matters contested upon this appeal. The wire was part of a line about one hundred eight rods long running in a southerly direction from a public highway to a transformer on the farm of defendant Claas. The line consisted of twenty-three poles and two wires and was built to furnish electricity to Claas. It was built and paid for by Claas. Claas' farm is located about one-half mile south of the highway from which the line is taken. Between the Claas farm and the highway are the farms of Amanda Raasch and John Wick. These two farms abut on the highway and between them is a private road or lane about one rod wide going from the highway to the Claas farm and used for ingress and egress by the occupants of all three farms. This road runs south for some fourteen hundred feet, turns southeast for about eighty feet, and then runs south to the Claas farm. The line runs south from the highway along the east side of this road, which is the side adjoining the Wick farm. At the point where the road turns easterly, the electric line crosses the road or lane, and at the point of the accident was on the Raasch property. On this part of the farm an orchard is located. The line was built in 1927, inspected by the electric company before the current was turned on, and a transformer, which is the property of the company, installed upon some portion of the line near the Claas farmhouse. The purpose of the transformer was to step down the current from 4800 volts to that appropriate for use in connection with the Claas farm. The pole nearest the tree in which Oesterreich met his death leans toward the tree and is braced by a wooden brace anchored on the Raasch farm. At the time the line was built the tree was trimmed. On the afternoon of the accident Oesterreich, his wife and two boys, together with Ernest Luedtke, his wife, and children, drove from Milwaukee to the Raasch farm to pick apples. This was on the invitation of Amanda Raasch, who was Mr. Luedtke's aunt. They drove an automobile with a trailer attached, arrived at the Raasch farm about 3 o'clock in the afternoon, and the women stayed at the house while Oesterreich, Luedtke, and the two Oesterreich boys drove down to the orchard. For some time they stood on the trailer and picked apples. Thereafter, Oesterreich, Luedtke, and one of the boys climbed the tree, the former taking with him a rope and basket. After some time Oesterreich asked Luedtke to get a hacksaw blade from the car so that he could saw a limb. After handing up the hacksaw, Luedtke stayed on the ground and picked up apples that had dropped. Getting no replies to some remarks directed to Oesterreich, he looked up in the tree and saw him sitting on a limb with his left hand, elbow and cheek resting on a wire. He called the boys and ran to the farmhouse for help, and by that time there was smoke and flame in the vicinity of Oesterreich. The power line was eventually cut and Oesterreich removed from the tree. He had been instantly killed by the passage of electric current through his body.

The nonsuit was granted in this case because of the conclusion of the trial court that neither defendant was guilty of negligence, and that, if they were, Oesterreich was guilty of negligence which exceeded fifty percent of any total negligence involved. It is the contention of plaintiff that the jury was entitled to conclude from the evidence that there was negligence either in permitting the pole and the wires to sag in the direction of the trees, or in failing to keep the tree trimmed so that it would not be dangerous to anyone who sought to harvest apples by climbing the tree. Reliance is had upon Wilbert v. Sheboygan L., P. & R. Co., 129 Wis. 1, 106 N. W. 1058, 116 Am.St.Rep. 931, where this court stated that the hidden and concealed but very high danger involved in the use of electricity requires a higher degree of caution and diligence than ordinary care. To the same effect, see, also, Nagle v. Hake, 123 Wis. 256, 101 N.W. 409; and Hayden v. Carey, 182 Wis. 530, 196 N.W. 218. See, also, Erikson v. Wisconsin Hydro-Electric Co., 214 Wis. 614, 254 N.W. 106, 107, where this court said: “Ordinarily the extent to which wires conveying deadly electric currents should be insulated or otherwise guarded is a jury question.”

In the Erikson case it was held to be a jury question whether it should have been foreseen that a tree with many branches readily climbed by youngsters would attract a child to climb into a position of peril.

In dealing with this question, it is necessary to give separate consideration to the situation of the two defendants. The contention of the defendant Wisconsin Gas & Electric Company is that the power line was not built, owned or possessed by it; that it had no legal right to touch or meddle with the poles or wires, and hence no duty to repair or inspect the condition of the line; that under sec. 180.17 (6), Stats., it would be liable for treble damages to Mrs. Raasch if it had cut or trimmed the tree. It is asserted that there is nothing in the case to show that the company had any knowledge or means of knowledge that there was any dangerous condition along this power line. It is conceded by defendant company that if it had had notice of such a condition, it would have been its duty to cease energizing the line until the owner took the necessary steps to make it safe.

[1][2] With respect to the liability of the defendant utility, certain rules are established by the nearly unanimous weight of authority. When a transmission line is neither built, owned nor controlled by a utility sought to be charged with damages arising out of its condition, such utility is neither bound to inspect the line nor obligated to respond in damages for injuries sustained by its defective construction or condition unless it supplies current actually knowing of these conditions and the current is the cause of the injury sued for, in which case it is the energizing of the line with knowledge of the conditions and not the conditions themselves which forms the basis of liability. Hoffman v. Leavenworth Light, Heat & Power Co., 91 Kan. 450, 138 P. 632, 50 L.R.A.,N.S., 574; Barnett v. Virginia Public Service Co., 169 Va. 329, 193 S.E. 538;Fickeisen v. Wheeling Electrical Co., 67 W.Va. 335, 67 S.E. 788, 27 L.R.A.,N.S., 893; Minneapolis General Electric Co. v. Cronon, 8 Cir., 166 F. 651, 20 L.R.A.,N.S., 816; Peters v. Lynchburg Light & Traction Co., 108 Va. 333, 61 S.E. 745, 22 L.R.A.,N.S., 1188; Kelly v. Duke Power Co., 4 Cir., 97 F.2d 529;Brunelle v. Lowell Electric Co., 188 Mass. 493, 74 N.E. 676;Pressley v. Bloomington & Normal Ry. & Light Co., 271 Ill. 622, 111 N.E. 511;Princeton Light & Power Co. v. Ballard, 59 Ind.App. 345, 109 N.E. 405;Scott v. Rome Ry. & Light Co., 22 Ga.App. 474, 96 S.E. 569.

The reason for this rule is obvious. While a high degree of care is required of those who undertake to generate and transmit electricity, the liability is nevertheless grounded upon negligence and is not the liability of an insurer. Therefore, a furnisher of current who may not without trespass have access to equipment to ascertain its condition cannot fairly be charged with negligence in furnishing electricity to the line unless it has actual knowledge of a dangerous condition. It is, of course, obvious that such a person is not in a position to make changes in a system over which he has no control. The furthest the law can reasonably go is to establish a duty on his part not to energize a private line...