Perham v. Portland General Elec. Co.
| Decision Date | 18 April 1898 |
| Citation | 33 Or. 451,53 P. 14 |
| Parties | PERHAM v. PORTLAND GENERAL ELECTRIC CO. [1] |
| Court | Oregon Supreme Court |
Appeal from circuit court, Multnomah county; E.D. Shattuck, Judge.
Action by W.T. Perham, administrator, against the Portland General Electric Company. Judgment for plaintiff, and defendant appeals. Affirmed.
This is an action brought under section 371 of the Code to recover damages for the death of plaintiff's intestate, caused by the alleged negligence of the defendant company. The facts which are practically undisputed, are that on September 27 1893, the plaintiff's intestate, an employé of the East-Side Railway Company, a corporation owning and operating a suburban railway between Portland and Oregon City, was killed while engaged in repairing its bridge across the Clackamas river, by coming in contact with wires owned and used by the defendant company for the transmission of electricity from its station in Oregon City to its customers in the city of Portland, and which were suspended over and horizontal with such bridge. This bridge is described by the witnesses as a Howe truss with half-hip connections, 22 feet wide, and the distance between the top and bottom chords is 35 feet. Near the ends of each top chord are four vertical iron rods with nuts and washers, connecting the top and bottom chords, and the top chords are connected together by 6X8 lateral braces, set on edge, crossing each other in the shape of the letter X, and also by iron rods, about an inch in diameter, at either extremity. The main end braces of the bridge run from the ends of the top chords to the outer end of the bottom chords at an angle of 45 degrees, and are connected together by cross braces similar to the top lateral braces, and also by two timbers 5 1/2 by 9 1/2 inches, called "strut braces," placed horizontally above and below the cross braces. The upper strut brace is 4 1/2 inches below the under side of the top chord, or 20 1/2 inches below the upper surface thereof, and the most southerly lateral rod connecting the top chords of the bridge is 22 inches north thereof, and 13 inches higher than its upper surface. Under a license from the railway company, the defendant had, at the time of the accident, 10 wires strung lengthwise and 35 inches above the top of the bridge, which were attached to pins in cross braces or arms extending from one side of the bridge to the other, and supported by standards resting on the top chords. The wires were placed one foot apart, except the two on the west side, between which there was a space of two feet. On the 15th of September, 1893, the railway company sent a gang of men under charge of a foreman to repair the bridge, and they were engaged in such work until some time in the following month. While thus engaged, it became necessary to tighten the nuts on the vertical rods connecting the top and bottom chords, and, as this could not be done on the south end of the bridge without moving the arm or brace to which the electric wires were attached, the foreman telephoned, on the morning of the 27th of September, to the office of the railway company in Portland, asking that a lineman be sent out to detach the wires, so that the arm could be moved, but, as the company neglected to do so, he concluded to go on with the work, and do the best he could. He thereupon directed the deceased and three other workmen to go up on top of the bridge, and tighten the nuts on the rods with a large wheel wrench 7 feet and 8 inches in diameter. The wheel part of this wrench was some 15 or 16 inches above the socket which fitted on the nut, and the wrench was operated by workmen sitting outside of the wheel on the chords or braces of the bridge, or boards placed thereon. Before working in and among the wires, the workmen examined them, and, finding that they were covered with the insulating material in common use, and that such covering was unbroken and apparently in good condition, and receiving no injurious effect from handling them, concluded that they were safe. At the time this examination was made, the wires were what are called "dead wires," as the electric current was shut off about 8 o'clock in the morning, and not turned on again until about 4 in the afternoon; but of this fact the workmen were ignorant, and they supposed and believed that the wires were live wires all the time, and that the reason they were harmless was because of the insulation. Along in the afternoon, the deceased and his fellow workmen, having completed the work at the north end of the bridge, proceeded to the south end for the purpose of tightening the rods on that end, but, being unable to place the wheel wrench on the nuts because of the standard which supported the cross bar to which the wires of the defendant company were attached, they were directed by the foreman to move it out of the way. At this time the two wires on the west side of the bridge were live wires, but this fact was unknown to the workmen. They proceeded to detach a sufficient number of the wires beginning at the east side of the bridge, to enable them to move the east end of the south standard or support a sufficient distance north to permit the use of the wheel wrench, and, after taking out the lag screws, which fastened the standard to the top chord, the deceased was directed by the foreman to cross over to the west side of the bridge to a hand line and draw up the tools necessary to be used in fastening the standard out of the way of the wrench. In obedience to this order, he started to walk over on one of the top lateral braces, stepping over the wires and steadying himself by touching them with his hands, and when he reached the two west wires, which were carrying at the time 5,000 volts of electricity, he accidentally took hold of both wires at the same time, and the entire force of the current passed through his body, killing him instantly.
The complaint alleges: That at the time the defendant so placed its wires over the bridge of the railway company it well knew it would be necessary from time to time for such company to cause the bridge to be repaired, and for persons to work upon the top chords and braces thereof; but, notwithstanding such knowledge, it carelessly and negligently strung its wires only 2 1/4 feet above such chords and braces, and in such a manner that it was not possible or practicable for persons to work upon such bridge without coming in contact with and handling the same; and that it carelessly and negligently failed and omitted to protect or cover the wires, and particularly the two west ones, with safe or sufficient insulating material, and that it carelessly and negligently permitted the covering used thereon to become worn defective, and wholly insufficient to render them safe to persons coming in contact therewith. That it knew the bridge was being repaired during all the times referred to, and particularly on the 27th day of September, and that it might be necessary at any time between the hours of 7 o'clock in the morning and 5:30 o'clock in the afternoon of that day for the workmen to move about among and come in contact with its wires, and that it was no possible or practicable for them, nor for any one, to go upon or work upon the top chords or the top lateral braces without so doing; and that it also knew that the deceased was engaged in the work of tightening the vertical rods during the afternoon of the 27th, and that he was necessarily moving about among and coming in contact with and handling the wires, but that, notwithstanding such facts, it carelessly and negligently caused and permitted a high and dangerous current of electricity to be turned into the two wires nearest the west side of the bridge at about 4:20 o'clock in the afternoon, without notice or knowledge to the deceased or any of his fellow workmen; and that the deceased, while engaged in the performance of his duties and exercising due care and caution, and without any fault on his part, came in contact with said wires, and was instantly killed. That all the workmen on the bridge, including the deceased and foreman, thought and believed it was perfectly safe for them to move about among and touch and handle the wires referred to, because the same seemed to be insulated, but they had no knowledge of the time the current was turned into the wires, but thought and believed they were charged with electricity and were live wires at all times. The complaint then alleges the appointment of the plaintiff as administrator of the estate of deceased, and upon the question of damages avers: "That said Nathaniel Carl Perham at the time of his death was twenty-five years and six months old, unmarried, strong, healthy, temperate, industrious, and frugal, of good intelligence and business capacity, and was a skillful carpenter and bridge carpenter and contractor, and was earning and receiving wages at the rate of three dollars per day, and would, if he had continued to live during the ordinary period of life, have continued to earn and receive the same, and even greater, wages for his services, and would have accumulated property and estate of the present value of twenty thousand dollars; and that by reason of his death, occasioned by the negligence and wrongful acts and omissions of the defendant, as hereinbefore set forth, plaintiff, as administrator of said estate, has been injured and damaged in the sum of twenty thousand dollars;" and prays for judgment against defendant for the sum of $5,000, being the limit of a recovery permitted by the statute. The defendant, by its answer, admits that at the time it placed its wires on and along the bridge in question it knew that it would be necessary to repair the bridge from time to time, and that in doing so persons would be required to go...
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