Richmond & P. Electric Ry. Co v. Rubin

• Decision Date: 16 June 1904
• Citation: 47 S.E. 834,102 Va. 809
• Court: Virginia Supreme Court
• Parties: RICHMOND & P. ELECTRIC RY. CO. v. RUBIN.

47 S.E. 834

102 Va. 809

RICHMOND & P. ELECTRIC RY. CO.

v.RUBIN.

Supreme Court of Appeals of Virginia.

June 16, 1904.

STREET RAILROADS — ELECTRICITY — TROLLEY WIRES—INTERSECTING LINES—FIRE—LIABILITY—CONTRIBUTORY NEGLIGENCE—WITNESSES —LEADING QUESTIONS — HARMLESS ERROR— EXPERT TESTIMONY—BILL OF EXCEPTIONS.

1. Where plaintiff's goods were burned by fire caused by an electric current introduced by telephone wires coming in contact with the live wires of an intersecting railway line, the question whether the defendant railway company used due care in the construction of its line, intersecting the telephone line, was for the jury.

2. It was immaterial to plaintiff's right of recovery whether the defendant company or the telephone company had the prior or superior right in erecting their respective wires, as it was the duty of both to exercise due care to see that their wires did not come in contact.

3. Where, in an action against a street railway company for fire caused by the alleged negligent manner in which it constructed its wires at a point where they intersected telephone wires connecting with plaintiff's building, the manner in which the telephone line had been constructed was before the jury, it was not error to refuse to instruct that the law pre sumed that the telephone company in erecting its line used all ordinary precautions for making its wires safe.

4. Plaintiff was not guilty of contributory negligence in failing to use a device to be attached to telephone wires entering houses to guard against the admission of an unusual and dangerous flow of electricity.

5. When and under what circumstances a leading question may be put is in the discretion of the trial court, and, as a general rule, is a matter which cannot be assigned as error.

6. Any error in permitting a leading question was harmless where the witness had already testified to the matter called for by the question.

7. Evidence showing by which party a witness was summoned is admissible to show that that party thought him worthy of credence.

8. In an action for damages from fire on electric wires, an expert witness was asked whether or not a certain kind of.fuse was in common use, and answered that he did not know. On the next day he was called, and asked if he had made inquiries about its use, and whether or not he could make any statement in addition to that made the day before. Held, that his knowledge on the subject was not of such a character as to fit him to answer the question.

9. The answer expected to a question which is not permitted to be answered must be shown in the bill of exceptions.

Error to Circuit Court, Chesterfield County.

Action by Harry J. Rubin against the Richmond & Petersburg Electric Railway Company. Judgment for plaintiff, and defendant brings error. Affirmed.

William L. Royall, for plaintiff in error.

P. V. Cogbill and D. L. Pulliam, for defendant in error.

BUCHANAN, J. Harry J. Rubin instituted his action of trespass on the case to recover damages for the burning of his stock of goods, alleged to have been caused by the negligence of the Richmond & Petersburg Electric Railway Company. Upon the trial of the cause there was a verdict and judgment for the plaintiff, and to that judgment the railway. company obtained this writ of error.

The first error assigned is the action of the trial court in refusing to give the defendant company's instruction numbered 4, which is as follows:

"If the jury believe from the evidence that the fire which consumed plaintiff's store was not caused by defendant's agents moving the poles of the Long Distance Telephone Company of Virginia, or otherwise weakening the wires of the said Long Distance Telephone Company so that one or more of them broke and fell upon the wires of the defendant, and took up and carried from them electricity to plaintiff's store, thereby setting fire to it; and if they further believe from the evidence that when defendant, in constructing its railway line, reached the turnpike where its wires had to intersect with the wires of the Long Distance Telephone Company of Virginia it found the line of the said telephone company properly constructed, and with wires as good and as strong as are usually used in the construction of long distance tele-phone lines in the country; and if they further believe from the evidence that defendant, in running its wires under the wires of said Long Distance Telephone Company, placed them far enough from those wires to avoid risk of contact between them by reason of said telephone wires sagging from natural causes—then they are instructed that defendant was under no obligation to erect guard wires or other safeguards between its wires and the wires of said telephone company. And if they further believe from the evidence that the wires of said Long Distance Telephone Company of Virginia were broken by a sleet caused by a storm so violent and extraordinary that the history of climatic variations and other conditions in this region afforded no reasonable warning of it, and that, being thus broken, they fell on the defendant's wires, and took up from them electricity, which they carried to plaintiff's store, and thereby set it on Are, then they are instructed that defendant is not liable for its electricity being so carried to plaintiff's store, and their verdict should be for defendant, unless the wire broke at a place where defendant's agents cut and mended the same."

By this instruction the court was asked to tell the jury, among other things, that, as a matter of law, the defendant company, in running its wires under the telephone wires, was under no obligations to erect guard wires, or other safeguards, between its wires and the telephone wires, provided the distance between them was sufficient to avoid contact between them by reason of the sagging of the telephone wires, if they believed the telephone line was properly constructed, and its wires as good and as strong as are generally used in the construction of long distance telephone lines in the country. It is true, as insisted by counsel for the defendant company, that in the construction and maintenance of its wires under the telephone wires it was only required to exercise reasonable or ordinary care. But what is reasonable or ordinary care is to be graduated and determined by the danger under all the circumstances of the case. The danger to persons and property from permitting a telephone wire to come into contact with a trolley wire heavily charged with electricity is very great, and the care required to avoid such contact must be commensurate with the danger. 1 Thompson on Neg. (2d Ed.) §§ 797, 804; Joyce on Electricity, § 445.

The fact that the defendant company had legislative authority to operate an electric railway did not lessen its duty to exercise a degree of care proportionate to the danger to be avoided. A steam railway company has legislative authority to employ the powerful and dangerous agency of steam, but that does not make it any the less incumbent upon such company to avail itself of the best mechanical contrivances and inventions in known practical use, which are effectual in preventing the burning of private property by the escape of sparks and coals from its engines, and it is liable for injuries caused by its omissions to use them. Brighthope Ry. Co. v. Rogers, 76 Va. 443, 450. The agency by which an electric railway operates its cars is certainly as dangerous as steam, and at least as high a degree of care should be required of such a company as is imposed upon a steam railroad company.

Many accidents occur which are caused by the current of high tension wires being transmitted through low tension wires when such wires come into contact by sagging or breaking. "The number of such accidents, " says Thompson on Negligence, vol. 1, § 804, "raises the obvious conclusion that the-exercise of reasonable care, which is graduated to the danger, demands in this relation a very high and exact measure of foresight, skill, diligence, and inspection." Joyce on Electricity, § 445. To guard against such danger, guard wires, insulation, and other devices are frequently employed; and where a company negligently fails to maintain such devices between its trolley wires and telephone wires, and injuries result from telephone wires coming in contact with its trolley wires, it becomes responsible for such injuries, its negligence being the proximate cause of the accident. 1 Thompson on Neg. §§ 805-807; Joyce on Electricity, §§ 517a, 445; 1 Shear. & Red. on Neg. § 698.

The defendant introduced witnesses more or less experienced in the construction and maintenance of electric lines, who testified that they had never known guard wires to be permanently used to prevent telephone wires from coming into contact with trolley wires. Their evidence did not establish the fact that such was the general usage or custom of ordinarily prudent persons engaged in the business of operating electric lines. If it had, it would not have brought the case within the doctrine laid down in Bertha Zinc Co. v. Martin's Adm'r, 93 Va. 791, 22 S. E. 869, as the counsel for plaintiff in error contends.

In this case the defendant was using a highly dangerous...