Richmond Light, Heat And Power Company v. Rau

• Decision Date: 17 December 1915
• Docket Number: 22,829
• Citation: 110 N.E. 666,184 Ind. 117
• Parties: Richmond Light, Heat and Power Company et al. v. Rau, Administratrix
• Court: Indiana Supreme Court

110 N.E. 666

184 Ind. 117

Richmond Light, Heat and Power Company et al. v. Rau, Administratrix

No. 22,829

Supreme Court of Indiana

December 17, 1915

From Randolph Circuit Court; James S. Engle, Judge.

Action by Iva May Rau, administratrix of the estate of Ora Rau deceased, against the Richmond Light, Heat and Power Company and others. From a judgment for plaintiff, the defendants appeal. (Transferred from the Appellate Court under § 1405 Burns 1914, Acts 1901 p. 590.)

Affirmed.

W. H Latta, Robbins & Robbins, Wm. A. Bond and Monks, Robbins Starr & Goodrich, for appellants.

Thomas J. Study and W. G. Parry, for appellee.

OPINION

Morris, C. J.

Action for damages by appellee, Rau, administratrix, for death of her husband, alleged to have been caused by the negligence of appellant corporations. Appellants Richmond Light, Heat and Power Company, and Terre Haute, Indianapolis and Eastern Traction Company, severally demurred to the complaint, and each demurrer was overruled. These rulings are here assigned as error. Appellant, city of Richmond, filed no demurrer. Each appellant answered in general denial. Trial by jury, resulting in verdict and judgment against all appellants. The separate motion of each appellant for a new trial was overruled and each assigns as error the ruling on its motion.

The complaint alleges that for years prior to September 5, 1911 appellants city of Richmond, and Richmond Light, Heat and Power Company were each engaged in manufacturing, distributing and selling electric current for furnishing light and power to the city and inhabitants thereof, and that appellant, Terre Haute, Indianapolis and Eastern Traction Company, during the same time, was engaged in operating an electric street railway on the streets of the city; that the city and the light company, in supplying and distributing current for lighting, used what is known as primary and secondary electric wires, the former carrying a dangerous current of 2,200 volts, and the latter carrying a current of only 110 volts, and supplying current to residences and other places for lighting purposes; that these wires were placed on cross arms, four feet long, fixed to tops of poles about twenty-five feet high, planted at the sides of streets, and these poles were used by both appellants to carry their respective light wires; that in the operation of their lighting plants these appellants used, in common, a row of poles in the west side of Sheridan Street; that appellant light company had placed on the outer west ends of the cross arms one of said primary wires carrying a current of 2,200 volts while eighteen inches east thereof, and west of the poles, on the same cross arms, appellant city had placed one of its secondary wires. It is further alleged that tracks of appellant traction company were laid on Sheridan Street; that it had an overhead trolley system, and its trolley wire, in said street, was supported by means of cross wires attached to the tops of the poles, on the west side of the street; that the poles were originally planted by one of the other appellants for use in distributing electric light current, and were small, frail and insufficient, and not adapted to supporting and carrying the trolley wire; that appellant traction company negligently attached its cross wires supporting its trolley wire, to the poles, and, because of the facts averred relating to size, condition and planting of the poles, and because of the weight of the trolley wire, and the swinging and vibration, up and down, of the trolley, when cars were in motion, said appellant negligently pulled the tops of the poles to the east, particularly one of the poles located immediately north of John Street, and thereby negligently caused said electric light wires to come in contact with one another and with a taller telephone pole, standing immediately east of the line of the electric light poles, and at a point thirty feet north of the first electric light pole north of John Street, and thereby to destroy the insulation on the electric light wires in the vicinity of the telephone pole; that on September 5, 1911, and for six months prior thereto, the appellant traction company knew that its cross wires were attached to the poles as aforesaid, and that the poles were insufficient therefor and that they were carrying the wires of the other appellants for the purposes aforesaid; that appellants city and light company each negligently permitted the destruction of insulation of their wires, at the place, and had thereafter negligently permitted the two wires to rub against one another, and against the telephone pole; that all the appellants knew, before the accident to decedent, and in time to have repaired the light wires and in time to have avoided their contact with one another or with the telephone pole, that the insulation, at that point, was destroyed and that the two wires, bare of insulation, were there in contact with one another and with the telephone pole; that appellee's decedent had no knowledge of the conditions or facts. It is further averred that on and prior to September 5, 1911, appellant city was furnishing electric light to one Martin at his residence, the current for which was transmitted over its secondary wire; that appellee's decedent was then and had long been, in said appellant's employ, engaged in work on its various lines, and was ordered to inspect the lighting appliances at the Martin residence; that while so engaged, the uninsulated portions of the two wires in Sheridan Street came in contact, and...