Phillips v. Erie County Electric Company
| Decision Date | 10 May 1915 |
| Docket Number | 153 |
| Parties | Phillips v. Erie County Electric Company, Appellant |
| Court | Pennsylvania Supreme Court |
Argued April 27, 1915 [Copyrighted Material Omitted]
Appeal, No. 153, Jan. T., 1915, by defendant, from judgment of C.P. Erie Co., Sept. T., 1911, No. 196, on verdict for plaintiff in case of Vera M. Phillips, by her next friend, W L. Moore, v. Erie County Electric Company. Affirmed.
Trespass to recover damages for death. Before BENSON, J.
The action was begun on August 14, 1911. On June 2, 1913, plaintiff asked leave to amend statement of claim, which amendment was allowed.
The facts appear by the opinion of the Supreme Court and in the charge to the jury, as follows:
The case that you are sworn to try is that in which Vera M. Phillips, a minor, by her next friend, W. L. Moore, is the plaintiff, and the Erie County Electric Company is the defendant. It is a case brought in trespass to recover damages which the plaintiff claims to have sustained by reason of the death of her husband, the death having resulted according to her contention, by the negligence of the defendant.
It is proper for us to instruct you that the happening of the accident raises no presumption of negligence. The burden is upon the plaintiff to satisfy the jury, by the weight of the evidence, of the negligence of the defendant and the want or lack of contributory negligence on the part of the deceased.
Negligence is the absence of ordinary care according to the circumstances, and ordinary care is that care which an ordinarily careful and prudent person would use in matters of importance to himself, under similar circumstances and conditions.
The evidence in this case tends to show that the defendant company, sometime in the year 1890, erected a line of poles on the east side of Sassafras street to carry certain high-tension wires for conducting electric fluid for the purpose of street lighting and other commercial uses.
Later, about the year 1897 or 1898, according to the testimony, the Mutual Telephone Company, a corporation of the State of Pennsylvania, was permitted to do business in the City of Erie and granted the right by the proper authorities of the City of Erie to erect a line of poles for carrying their wires along the same side of Sassafras street; it seems that in 1890 the placing of these poles was under the control of the Engineer's Department of the City of Erie. The license granted to the defendant company does not show an exclusive right to that side of the street; that the City did not give up its right to grant a similar right to other companies desiring to use that portion of the city for other purposes. Later there was created in the City of Erie an electrical department, over which is placed an officer termed City electrician, and after the creation of this office the placing of the poles was given in his care and control, and at the time of the erecting of the poles of the Mutual Telephone Company the city electrician had charge, and he granted a permission to set poles along the line of the poles formerly erected by the defendant company, at such place that the pole would extend up through the wires carried on the poles of the defendant company.
This locality and condition was imposed on the telephone company by the City of Erie, by locating the poles at that point.
Perhaps a year or two before the happening of this accident the Mutual Telephone Company were placing new poles, and for the purpose of decreasing the number of poles (which are more or less of an obstruction along a street or highway) the location of their pole was changed so as to bring the pole also in the line of Twenty-second street, to enable this corner or junction pole at this point to carry not only the wires of the Mutual Telephone Company north and south along Sassafras street, but also to carry the wires on Twenty-second street east and west. A permission was granted, according to the testimony of the City Electrician, to plant this pole exactly in the line of the poles set by the defendant company. There is no evidence that the defendant company ever objected to the poles being located in this way; and they were in this condition on the 11th day of July, 1911, when the decedent, the husband of the plaintiff, was employed as a lineman by the Mutual Telephone Company, and on the afternoon of this day had been sent by his employer to this place, with the other men in the gang, to repair some broken wires or some difficulty at this junction pole. Upon arriving at the place he was directed by the superintendent of the gang to climb the pole, with a rope attach it to the wire and then throw it over to the men on the ground, when they could pull the cable and the wire over the arm and repair the damage of the broken wire of the company.
The evidence on the part of the plaintiff tends to show that Mr. Phillips started to ascend this pole on the north side of the pole and that he had gone up through the wires attached to this pole, of another electric light company in the City of Erie, and as he proceeded up the pole, there not being sufficient space between the high-tension wires of the defendant company for him to pass through, he had turned over to the west side of the pole and attempted to go out over the wires when his shoulder came in contact with the high-tension wire on the west side of the pole and which was attached to this pole by a bracket, and a circuit, according to the evidence seems to have been formed between this high-tension wire and a wire of the telephone company which went along down the south side of the pole, which badly burned the decedent's shoulder and his right hand and arm up as far as the elbow.
There is no direct evidence upon this point, except that the witnesses tell you the position that he occupied on the pole at that time; that he had his hand on the steps or spikes on the south side of the pole, which would perhaps bring it in contact with this lead wire that led down that side of the pole. The evidence also tends to show that from the position that he occupied, and taking into consideration the arc or rotundity of the pole, he would be unable to see this lead-covered wire, unless he looked specially to see it.
From this shock (which the evidence does not show whether or not was the cause of his death) he fell to the ground, and his skull was fractured somewhere in the back part of the head, at the base of the brain. It would make no difference what was the cause of death if you find that the shock was what caused him to fall, -- whether it was from electricity or from the fall itself, -- as bearing upon this case.
He was taken to the hospital, and you have the testimony of the doctor as to the burning of the left shoulder up close to the neck and also the burning of the palm of the hand, and the arm up as far as the elbow. That is also testified to by his brother-in-law, and perhaps one or two of the other witnesses or linemen who were working there at the time.
As bearing upon the negligence of the defendant company, the negligence complained of here was lack of proper insulation, or construction, in arranging these wires and covering the wires that were carried upon these poles. It seems that the wires had been covered with what is termed weather-proofing and that at the point where the decedent came in contact with the wire this weather-proofing had been worn off, allowing the wire to be exposed.
As to whether or not this weather-proofing would be any protection to life the evidence is somewhat conflicting; some of the witnesses for the plaintiff stated it would be extremely dangerous to touch or come in contact with this wire even though it were perfectly covered with the weather-proofing other witnesses for the plaintiff state that it would afford protection, that it would give a man a chance, that on account of the thickness of the weather-proofing which in dry weather is a non-conductor the currents might not come in contact quick enough, or with sufficient force, to cause a shock or death, but that it being uncovered there was no...
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