Poor v. Madison River Power Co.

• Decision Date: 15 February 1909
• Citation: 99 P. 947,38 Mont. 341
• Parties: POOR v. MADISON RIVER POWER CO. et al.
• Court: Montana Supreme Court

99 P. 947

38 Mont. 341

POOR v. MADISON RIVER POWER CO. et al.

Supreme Court of Montana

February 15, 1909

Appeal from District Court, Gallatin County; Henry L. Myers, Judge.

Action by J. R. Poor, administrator of Amos R. Howerton, deceased against the Madison River Power Company and another. Judgment for defendants, and plaintiff appeals. Reversed and remanded.

Those portions of the complaint in this action which are necessary to be considered in disposing of the appeal are as follows "That on or about the 23d day of January, 1907, the defendant Madison River Power Company was the owner of a certain building known as its 'substation,' situated near the western limits of the city of Bozeman, county of Gallatin, state of Montana, and of all electrical apparatus devices, appliances, and wires situated therein. That on said 23d day of January, 1907, and at the time of the injuries hereinafter mentioned, the said Amos R. Howerton, deceased was employed and hired by the defendant Madison River Power Company as a carpenter for the purpose of making certain improvements and alterations within and upon the said substation building of the defendant Madison River Power Company, under the direction of the defendant A. E. Davidson who was at said time the superintendent or foreman of the defendant Madison River Power Company, and in charge of said substation and of the improvements and alterations therein and thereon being made at said time, upon which the said Amos R. Howerton, deceased, was so employed. That the said Amos R. Howerton, deceased, was employed by the defendant Madison River Power Company by the day, and had been engaged on said work for a period of about one week prior to the said 23d day of January, 1907, except for several days during said period, when such work was interrupted by reason of cold weather. That on said 23d day of January, 1907, and at the time of the injuries hereinafter mentioned, there was within said substation building a certain brickwork rising to a height of about 12 feet from the floor of said building. That about a foot back from the edge of said brickwork, and at a height of about 18 or 20 inches from the top edge of said brickwork, there was a wire carrying electric current from the power plant of the defendant Madison River Power Company, situated on the Madison river, in Madison county, Mont., which said wire entered said substation at the west end thereof, and passed into said substation, and delivered electric current into certain transformer pockets encased and erected in and upon the said brickwork, which said current was therein transformed to a lower voltage, to be carried by other wires into the city of Bozeman, to supply light and power for domestic uses to consumers in said city of Bozeman. That at the said time the said wire was charged with and carrying an electric current of about 40,000 volts of electricity, and that said wire was wholly uninsulated and unprotected. That between the hours of 7 and 9 o'clock on the morning of the said 23d day of January, 1907, the said Amos R. Howerton, deceased, while engaged in the performance of his duty under his employment with defendant Madison River Power Company, as aforesaid, was working as a carpenter in said substation building under the direction of the said A. E. Davidson, and was engaged in constructing certain 'horses' to be used as a part of and for the purpose of erecting a staging or scaffolding to enable the said Amos R. Howerton, deceased, to make certain improvements or alterations near the roof on the inside of the said substation building at a point almost directly over and above the said brickwork and above said wire. That while so engaged, and after having constructed the said 'horses,' and placed the same in position about two or three feet distant from the said brickwork, and while engaged in placing boards or planks on top of said 'horses,' so that the same would run from one of said 'horses' to the other for the purpose of completing said staging or scaffolding, and to form a place where he might stand while engaged in making such improvements or alterations near the roof of said building, as aforesaid, and while the said Amos R. Howerton, deceased, was standing at or near the top of one of the 'horses,' and while his body was in a position almost on a level with the edge of said brickwork and close to the said wire above mentioned, the said Amos R. Howerton, deceased, accidentally lost his footing, and in an attempt to prevent his falling from said height to the floor below, and not knowing that the same was charged with electricity, threw his right arm over the said wire, which threw his body over in such a way as to cause it to come in contact with said brickwork, thereby forming a circuit and causing the full current of electricity with which the said wire was charged to pass through the body of the said Howerton, as a result of which said electric shock the said Howerton instantly died. That the said Howerton, deceased, by reason of his inexperience with electric wires and devices, did not know that the said wire which caused his death, as aforesaid, was charged with electricity, and did not know that the said place where he was working was dangerous and unsafe because of the danger of his coming in contact with wires charged with electricity. That the defendant wrongfully and negligently failed to inform said Amos R. Howerton, deceased, that the said wire which caused his death was charged with electricity, or of the danger in which he was placed because of the fact that there were wires charged with electricity in dangerous quantity in close proximity to the place where said Howerton was working as aforesaid. That the said defendants had knowledge and notice of said conditions and of said dangers, or by the exercise of reasonable diligence could have had knowledge and notice thereof. That it was the duty of the defendants to use reasonable and ordinary care, to the end that the place where they had said Howerton working for them be reasonably safe and free from danger, and that it was the duty of the defendants to keep the said place where the said Howerton was working free from danger while the said Howerton was complying with the directions and commands of the defendants; but that the said place so furnished the said Howerton to do the work aforesaid was not a safe place, but, on the contrary, and by reason of the facts aforesaid, the same was a highly dangerous place, and because of the existence of said electric wires charged with electricity, as aforesaid, in close proximity to the place where said Howerton was working, the defendants failed in their duty to keep and maintain the said location where the said Howerton was then working free from danger, and that by reason of the failure of the defendants to furnish the deceased Howerton a reasonably safe place in which to perform his labor, and their failure to keep the same free from danger, the said Howerton was killed."

The defendants filed a general and a special demurrer to the complaint, which demurrers were by the court overruled whereupon they filed an answer, wherein they admitted the allegations of the complaint as to the conditions, location, connections, uses, and purposes of the wires and transformer pockets therein mentioned, and that the same were uninsulated and could not be insulated, and that the same were unprotected, except that the wire was located so far above the floor of the substation that it was impossible for any one to come in contact with it while using ordinary care; and alleged, first, that Howerton "had the entire control and direction of the work he was employed to perform, and that he devised the plans for the same and directed and controlled the performance of the same in all its details"; second, with the exceptions of a few immaterial admissions, the defendants denied all other material allegations of the complaint; and, third, for a separate defense, they alleged, "that the death of Howerton was caused solely and only by his own negligence and carelessness contributing directly thereto, and not otherwise, and in this: that said Howerton was employed to devise and construct within said substation for the defendant Madison River Power Company a platform to extend from the east end of the top of the brickwork mentioned in the complaint to the east end of the substation building therein described, on which platform the wire mentioned in the complaint and two other wires, which were located on the top of the said brickwork and charged with 40,000 volts of electricity, were to be placed, and by it permanently supported and carried to the east end of said building, and thence through certain apertures in the east wall thereof prepared for that purpose; that pursuant to said employment said Howerton planned and devised said platform and its method of construction and erection, and between the hours of 7 o'clock a. m. and 9 o'clock a. m. of the 23d day of January, 1907, being about to proceed with the construction of the same, and having full knowledge of the dangerous character of said wires and all thereof, was warned by defendant Davidson not to go up in the course of said work where he might come in contact with said wire mentioned in the complaint, until he, the said Davidson, should turn off the current of electricity with which said wire was charged, and thereupon said Howerton stated to said defendant that his said work would not be sufficiently advanced to require him, the said Howerton, to go up where he might come in contact with said wire before about 3 o'clock in the afternoon of that day; and thereupon it was arranged between said Davidson and said Howerton that during the noon hour of said day said Davidson would turn...