Potomac Edison Co. v. State, for Use of Hoffman

• Decision Date: 25 January 1935
• Docket Number: 77.
• Citation: 177 A. 163,168 Md. 156
• Parties: POTOMAC EDISON CO. v. STATE, FOR USE OF HOFFMAN ET AL.
• Court: Maryland Court of Appeals

177 A. 163

168 Md. 156

POTOMAC EDISON CO. v. STATE, FOR USE OF HOFFMAN ET AL.

No. 77.

Court of Appeals of Maryland

January 25, 1935

Appeal from Circuit Court, Washington County; Frank G. Wagaman Judge.

Action by the State, for the use of Joseph M. Hoffman, employer, and others, against the Potomac Edison Company. Judgment for plaintiffs, and defendant appeals.

Affirmed.

Argued before BOND, C.J., and URNER, OFFUTT, PARKE, and SLOAN, JJ.

Alexander Armstrong and H. Vernon Eney, both of Baltimore (Armstrong Machen & Allen, of Baltimore, on the brief), for appellant.

Walter L. Clark and Roszel C. Thomsen, both of Baltimore (Wm Preston Lane. Jr., and Joseph D. Mish, both of Hagerstown, on the brief), for appellees.

OFFUTT Judge.

This case was tried twice in the circuit court for Washington county. The first trial resulted in a judgment on a directed verdict for the defendant, which was reversed on appeal. State v. Potomac Edison Co., 166 Md. 138, 170 A. 568.

The second resulted in a verdict for the plaintiffs, and this appeal is from the judgment on that verdict.

The case is this: Samuel Merle Hoffman, herein called Merle, a young man nineteen years of age, was electrocuted on September 19, 1932, by coming too close to a heavily charged guy wire stretched across a public highway near Big Pool Station on the Western Maryland Railroad in Washington county, Md. He was employed at the time by his uncle Joseph M. Hoffman, referred to herein as Joseph Hoffman, who was engaged in the well-drilling business. In connection with that work Joseph Hoffman used a well-drilling machine mounted on a truck. At about 8:30 o'clock on the morning of the day of the accident, he was driving the truck in an easterly direction over a road known as the Cannery road, which intersected a public highway known as the State road at a point where that road turned south and was carried by a bridge over the tracks of the Western Maryland Railroad which paralleled the Cannery road. Near the southwest corner of that intersection and north of the railroad was a pole carrying a cross-arm on which were strung three high-tension transmission wires of the Potomac Edison Company, which ran from it to another pole on the south side of the railroad tracks. A guy wire attached to the pole north of the railroad was stretched diagonally across the intersection and fastened to a tree in a field north of the Cannery road. As Joseph Hoffman reached the intersection, the superstructure of the well-digging machine mounted on the truck which he was driving became entangled with the guy wire, and the energy of the moving machine exerted against the guy wire broke the pole to which the guy wire was attached so that it fell across the truck and broke one or more of the transmission wires. When that occurred, Merle Hoffman, who was following the truck in a smaller car, stopped, got out, and was said to have climbed on the truck and disengaged the guy wire. After that, and after he had alighted from the truck, in attempting to pass around on the north side of it he came in contact with or so near to the sagging guy wire that he received the shock which killed him.

At the close of the whole case the plaintiffs offered a damage prayer and an apportionment prayer, which were granted, and the defendant eleven prayers of which the C, D, fourth, sixth, and ninth were refused and the other granted. The C and D prayers were demurrer prayers, and the fourth, sixth, and ninth jury prayers. The rulings on these prayers are the subject of the only exception submitted.

The case was admirably tried both below and in this court. All immaterial and frivolous questions were waived or passed, so that as the case stands the only questions left for consideration are: (1) Whether upon the whole evidence before the court and jury in this case the court should have instructed the jury that Samuel Merle Hoffman was guilty of contributory negligence as a matter of law; and (2) whether the court should have granted (a) defendant's fourth prayer, which would have instructed the jury that if, under the facts and circumstances apparent to Hoffman at the time of the accident, he should as a reasonably prudent and cautious person have thought that the guy wire "might possibly be" dangerously charged with electricity, and thereafter touched it, he was guilty of contributory negligence as a matter of law, and (b) its sixth prayer, by which the jury were to be told that if Merle touched the wire after having been warned by his uncle not to do so he was negligent as a matter of law.

The plaintiffs' evidence offered at the second trial differed in no material particular from that offered at the first which is summarized in State v. Potomac Edison Co., supra. At the first trial the case was taken from the jury at the close of the plaintiffs' case, while at this one defendant called witnesses. The appeal from the judgment in the first trial presented two questions: (1) Whether the evidence was legally sufficient to support an inference of primary negligence; and (2) whether it permitted any rational inference other than that the injury and death of Merle Hoffman were in part, at least, caused by his own negligence. It was held in that case that the evidence was legally sufficient to permit an inference of primary negligence, and since the evidence affecting that issue was substantially the same at both trials, it is conceded that that question has been finally adjudicated.

At the first trial the defendant offered no evidence, but unless the evidence which it offered at the second trial so complements that offered by the plaintiffs at both trials that the whole testimony permits no rational inference other than that the negligence of Merle Hoffman contributed to the accident which caused his death, that question was also closed by the decision in State, for Use of Hoffman, etc., v. Potomac Edison Co. supra. It is not enough that the defendant's evidence tended to contradict that offered by the plaintiffs which was held in State v. Potomac Edison Co., supra,

sufficient to permit a rational inference that the defendant's negligence was the sole and exclusive cause of the accident, but it must have introduced some new fact or element missing at the former trial, which taken together with the plaintiffs' evidence excluded any rational inference other than that the negligence of Merle Hoffman contributed to the accident which caused his death. Otherwise defendant's contention on this appeal in respect to its contributory negligence prayer would be merely a reargument of its contention in respect to a similar prayer which was considered on the former appeal.

That view of the question under consideration is not disputed by the appellant, but it contends that by its evidence offered at the second trial it proved without contradiction new facts which completely changed the basis of the decision in the former appeal.

The use of electric energy in the industries, and the arts, in communication and transportation, for lighting and for motive power, in the home, the shop, the factory, and the foundry, in the city and in the country is so universal that at least an empirical and superficial knowledge of its dangerous qualities and characteristics must be assumed to be common to all persons of normal intelligence and experience. So that where such a person voluntarily comes in contact with, or approaches nearer than a reasonably prudent person would to, a wire or other thing which he knows, or as a person of ordinary knowledge and experience has reason to believe is sufficiently charged with electricity, to be dangerous, and in consequence of such contact or proximity is shocked and injured, it will be assumed as a matter of law that his own negligence contributed to the accident. State v. Potomac Edison Co., supra, and cases there cited. There is no evidence in the record in this appeal, as there was no evidence in the record in the former appeal, to show that Merle Hoffman had actual knowledge of the fact that the guy wire was charged with electric current at the time he was injured, so that the controlling question on this appeal, as on that, is whether upon the whole evidence he was chargeable with constructive knowledge of the deadly character of the guy wire at the time of the accident.

In dealing with that question it may be said that this is not one of those cases where contributory negligence is conclusively shown by the same facts which establish primary negligence, but that here contributory negligence was set up as an affirmative defense and that the burden was upon the defendant to prove it. Consolidated Gas. Co. v. Rudiger, 151 Md. 238, 134 A. 326; Hopper, McGaw & Co. v. Kelly, 145 Md. 170, 125 A. 779; Fletcher v. Dixon, 113 Md. 108, 77 A. 326.

The facts upon which the decision in State v. Potomac Edison Co., supra, that Merle Hoffman was not guilty of contributory negligence as a matter of law was based, were: (1) That he had no special knowledge of the properties of electricity nor indeed any knowledge of the qualities and character of electric current not common to persons of ordinary experience; (2) that there was no proof of any visible connection between the transmission wires and the guy wire or the truck; (3) that he had handled the guy wire a short time before the injury without suffering any harm; (4) that while he had been warned that the truck was charged, he was not warned that the guy wire was charged.

The contention of appellant is that in this case it conclusively appears from its evidence (1) that there was an open visible, and plainly apparent contact between the transmission wires and the guy wire, (2) that because of that fact it is immaterial that Merle Hoffman had...