Ryan v. Oshkosh Gaslight Co.

• Decision Date: 09 March 1909
• Citation: 138 Wis. 466,120 N.W. 264
• Parties: RYAN v. OSHKOSH GASLIGHT CO.
• Court: Wisconsin Supreme Court

138 Wis. 466

120 N.W. 264

RYAN

v.OSHKOSH GASLIGHT CO.

Supreme Court of Wisconsin.

March 9, 1909.

Appeal from Circuit Court, Winnebago County; George W. Burnell, Judge.

Action by Catherine Ryan, administratrix, against the Oshkosh Gaslight Company. From a judgment for plaintiff, defendant appeals. Affirmed.

This action was brought to recover damages for the pecuniary value of the life of the plaintiff's intestate, who was killed by an electric current charged to have been negligently permitted to pass over defendant's wires to a certain guy wire, with which intestate came in contact. The answer denied liability. The jury returned the following verdict: “(1) Was the defendant guilty of negligence in permitting the said guy wire at the point where the said Dennis H. Ryan came in contact therewith to become charged with electricity? Answer: Yes. (2) If you answer the above question ‘Yes,’ then was such negligence the proximate cause of the injury and death of said Dennis Ryan? Answer: Yes. (3) Was the primary wire on the pole near the place of the accident displaced and in contact with other wires at the time and place of the accident so as to render the guy wire dangerous? Answer: Yes. (4) If you answer the question last above ‘Yes,’ then had such condition existed for such a length of time that the defendant and its officers in the exercise of ordinary care and prudence ought to have known of and remedied the same before the accident? Answer: Yes. (5) Was the injury to said Ryan which resulted in his death an accident the proximate cause of which the jury is unable to discover from the evidence? Answer: No. (6) Did a want of ordinary care and prudence on the part of said Dennis Ryan contribute to his injury and death? Answer: No. (7) If the plaintiff is entitled to recover, at what sum do you assess her damages? Answer: $7,000.” After denial of the several motions made by defendant, the court rendered judgment in favor of the plaintiff upon the verdict, from which judgment this appeal was taken.Doe & Ballhorn and Bouck & Hilton, for appellant.

Doyle & Hardgrove, for respondent.

KERWIN, J. (after stating the facts as above).

At the time of the injury, and for many years prior thereto, the defendant was engaged in furnishing electricity to the city of Oshkosh and its inhabitants, and for such purpose maintained poles, wires, and equipments in the streets. At the point where Regent street in said city connects with Northwestern avenue was maintained an arc lamp supported by a span wire, each end of which was attached to a pole about 30 feet from the ground. This lamp, which hung over the center of Northwestern avenue, was fastened to the span wire by a metal interlocking device, which was attached to a wire under the span wire and to the northwest corner pole and extended down the pole to within a few feet of the ground. On the south side of Northwestern avenue, between the sidewalk and driveway, was a guy post to which a wire supporting the south pole was fastened. Near the top of this pole the span and guy wires wound around the pole in such manner as to be in contact. The primary wire which fed the lamp carried 2,300 volts of electricity. The arc wires carried about 8,000 voltage. At the time of the accident the primary wire was found detached from the insulator and lying across the cross-arm against the pole and wire which fed the arc lamp. The guy post, which was about 6 feet high, stood 35 feet from the pole which supported the arc lamp, and the guy wire was fastened to this guy post at about 3 inches from the top. On the 29th day of July, 1907, the deceased was killed by a current of electricity which had escaped to the guy wire with which the deceased came in contact. A great many errors are assigned, but they may so far as necessary to discussion be grouped under a few heads.

1. The form of the special verdict is vigorously assailed, and particularly upon the authority of Rowley v. Chicago, M. & St. P. R. Co. (Wis.) 115 N. W. 865. It is insisted that the issuable facts were not submitted, and that the court erred in refusing to submit to the jury the questions asked by the appellant. We have set out in the statement of facts the special verdict submitted, and think it fairly covered the issuable facts raised by the pleadings, namely, whether defendant was guilty of negligence in permitting the guy wire with which the deceased came in contact to become so charged, whether the primary wire was displaced and in contact with other wires at the time of the accident so as to render the guy wire dangerous and whether such condition had existed for such time that the defendant and its officers ought to have known of and remedied the defect; also, as to proximate cause, contributory negligence, and amount of damages. These were the material issuable facts raised by the pleadings. The instant case is clearly distinguishable from the Rowley Case. There the negligence complained of was the placing of a truck by defendant's employé on the station platform in such position that a passing train struck it and hurled it against the plaintiff, and the court refused to submit the questions asked covering this material controverted fact or any substitute therefor, and therefore the main fact was not found at all, except in the form of a general verdict. So the case is not controlling here.

2. It is also claimed that there was not sufficient evidence to support a verdict for plaintiff. This contention is based mainly upon the idea that it was not shown that the defect had existed a sufficient length of time before the injury to charge defendant with notice. We think this position untenable. That the dangerous current which killed Ryan escaped to the guy wire from the primary wire is without dispute, and the negligence established if defendant had notice in time to have remedied the defect before the injury. We think this question was for the jury. The accident occurred July 29, 1907, about noon. On Friday, July 26, 1907, a tree which stood on the south side of Northwestern avenue near the pole to which the charged wire ran was cut, and in falling a branch struck the wires and broke one and injured others, causing slack in one or two of the wires. On the evening of that day, the 26th, notice was brought to an agent of the defendant, who examined the premises and found the wires out of order and considerable slack in the primary wire which carried the high current. This displacement and defect of the primary wire was without doubt, under the evidence, caused by the tree falling upon the wires. On Saturday morning, July 27th, it appears from the evidence the agents of defendant attempted to repair the defect which was discovered Friday, but it is manifest that the question of whether they did properly remedy the defect was for the jury. If they did not, then the jury was justified in finding that the defect had existed such time as to render defendant liable for failure to repair. It would serve no useful purpose to go into a discussion of the evidence upon this proposition. The employés of defendant on Saturday took up the slack which they found in the wires, but did not go to the guy post or pole carrying the primary wire in question, but took up the slack at a point some distance therefrom and concluded that all was well.

It appears from the evidence that the view from the...