Owen v. Portage Tel. Co.

• Decision Date: 12 December 1905
• Citation: 105 N.W. 924,126 Wis. 412
• Parties: OWEN v. PORTAGE TELEPHONE CO.
• Court: Wisconsin Supreme Court

126 Wis. 412

105 N.W. 924

OWEN

v.PORTAGE TELEPHONE CO.

Supreme Court of Wisconsin.

Dec. 12, 1905.

Appeal from Circuit Court, Columbia County; E. Ray Stevens, Judge.

Action by Grant Owen against the Portage Telephone Company. Judgment for defendant, and plaintiff appeals. Affirmed.

Plaintiff was manager and in possession of a farm near the city of Portage, in which the defendant had, at his request, installed a telephone, the ground connection of which originally was a three-foot rod of iron driven into the ground, which proved inadequate in the winters of 1898 and 1899, whereupon the defendant, at plaintiff's request and with his knowledge, connected with the ground wire another wire, passing over a shed roof and into a pumphouse, and thence to the floor, and fastened around an iron pump. In the following spring a longer iron rod or pipe was substituted for the first one, and the ground wire of the telephone connected with that, thus leaving the telephone supplied with two ground connections. Some time in 1899 or 1900, the wire in the pumphouse became disconnected from the pump by no act of defendant, and for two or three years the disconnected end hung there in close proximity to the pump, and was used by the plaintiff to hang a key on. Some time in the spring of 1903, probably in March, the plaintiff, or some of his household, coiled up the dangling end of this wire and hung it upon a nail inside of the pumphouse, upon which hung a small looking-glass used by members of the family for toilet purposes, of which plaintiff had full knowledge. Meanwhile plaintiff had no knowledge or information that this wire had ever been disconnected from the telephone ground wire or that it had not. On May 26, 1903, in the midst of a violent electric storm, plaintiff, after ablutions, stepped in front of this glass to comb his hair, using for that purpose a metallic comb. His face was but a few inches from the coil of wire hanging on the nail. Suddenly there was a flash of lightning, apparently from the end of this wire, which struck plaintiff's face, rendering him unconscious, and causing serious injury. There was also evidence that about the same moment lightning struck a telephone pole not very far from the house, and signs of scorching near the telephone and at the end of this wire were discovered, claimed to indicate that the lightning, striking the pole, had been conducted through the telephone wire into the house, and thence through the wire into the pumphouse. This action was brought to recover plaintiff's damage. The jury found by a special verdict (1) that plaintiff's injury resulted from this wire; (2) that defendant was not guilty of negligence in not disconnecting the pumphouse wire from the ground wire; (3) that the defendant was negligent in leaving the wire disconnected from the pump; (4) that such negligence was the proximate cause of the injury; (6) that there was “want of ordinary care on the part of the plaintiff, which contributed to the injury”; and (7) damages $1,000. Plaintiff moved to reverse the answer to the sixth question and enter judgment in his favor on such amended verdict, and, failing such relief, that the verdict be set aside and new trial granted. Such motions were overruled, and judgment rendered for defendant on the verdict, from which plaintiff appeals.Fowler & McNamara, C. C. Wayland, C. A. Fowler, and Burr W. Jones, for appellant.

Daniel H. Grady, for respondent.

DODGE, J. (after stating the facts).

1. We agree with the trial court that there was evidence upon which the jury might have based their conclusion of plaintiff's contributory negligence in hanging or permitting to be hung on his premises the roll of wire in immediate proximity to the place where he and others were likely to stand in front of the looking-glass, and in taking his place near the same at a moment of violent electrical disturbance. The principal insistence of appellant against the sufficiency of such evidence is based upon the assertion that appellant had no knowledge that the wire in the pumphouse had not been disconnected from the ground wire of the telephone. We cannot think this sufficient. He knew that, when originally put in place and carried into the pumphouse, it had been so connected with the ground wire, and he offered no evidence of any knowledge or investigation on his part as to whether it had been disconnected. We think it within the province of the jury to consider whether it was not negligence in one to permit such a condition to exist on his own premises without even investigation and to expose himself to the peril thereof.

2. Error is assigned upon a ruling excluding an offer of proof that the iron stake or rod, to which the main ground wire from plaintiff's telephone was attached, was not an approved device, being rusty and not galvanized, so that, as argued, it failed of its full duty in conducting electricity to the ground, and at least enhanced the likelihood of lightning passing through the pumphouse wire. The objection and ruling were based upon the contention that the notice of injury failed to describe any such defect or negligence among the grounds upon which plaintiff's claim was made in accord with section 4222, Rev. St. 1898. We shall not deem necessary to decide how fully or specifically that notice must describe the negligence of defendant upon which a plaintiff grounds his claim, nor whether, by reasonable interpretation, the notice here may be held to point out this defect; for, if it be conceded that this evidence offered was admissible as tending to prove defendant's negligence, its exclusion could not have had any prejudicial effect upon that issue, because the jury found defendant negligent. An error which does not affect a substantial right cannot justify a reversal. Section 2829, Rev. St. 1898. But, says appellant, even if not admissible to prove defendant's negligence, such evidence did tend to rebut contributory negligence on plaintiff's part, if, as he claims, he had no knowledge of the defects in the ground connection, nor, therefore, of enhanced peril from the pumphouse wire. The offer of evidence was, obviously, not understood by either party or the court to be in support of any such issue; hence it cannot, in fairness to the trial court, be said that any ruling was made on that subject, so as to be a legitimate ground upon which to assign error. Waiving that consideraton, however, could error be predicated upon exclusion of evidence in denial of plaintiff's negligence at that stage of the trial? At the time of the offer there had been no evidence drawn out which could support an imputation of...