Smith's Adm'x v. Middlesboro Electric Co.

• Decision Date: 26 March 1915
• Parties: SMITH'S ADM'X v. MIDDLESBORO ELECTRIC CO.
• Court: Kentucky Court of Appeals

174 S.W. 773

164 Ky. 46

SMITH'S ADM'X v. MIDDLESBORO ELECTRIC CO.

Court of Appeals of Kentucky.

March 26, 1915

Appeal from Circuit Court, Bell County.

Action by A. T. Smith's Administratrix against the Middlesboro Electric Company. From a judgment for defendant, plaintiff appeals. Affirmed.

Black Black & Owens and B. B. Golden, all of Barbourville, for appellant.

T. G Anderson, of Middlesboro, Charles I. Dawson, of Pineville and Hazelrigg & Hazelrigg, of Frankfort, for appellee.

HURT J.

A. T. Smith, manager of the A. T. Smith Drug Company, was killed by an electric shock, at a time when he was using an electric light, in the drug store of the company. The electricity for the lighting was furnished by the Middlesboro Electric Company, a corporation, engaged in generating and distributing electricity for lighting purposes. The appellant, as administratrix of decedent, sued the electric company for $50,000 in damages, for the loss to decedent's estate by his death, alleging that his death was caused by the gross negligence of the servants of appellee, who were in charge of its plant and equipment for furnishing the light to the drug company. The appellee, by answer, traversed all allegations of negligence, and in addition pleaded contributory negligence on the part of the decedent, which latter plea was denied by reply. A trial by jury was had upon the issues made, which resulted in a verdict for appellee. The appellant filed grounds, and moved the court for a new trial, which motion was overruled. The necessary exceptions were saved, and she now appeals to this court.

The grounds for the new trial will be considered in the order offered by the appellant.

The first of the grounds is alleged error of the court in overruling her motion to file her fourth amended petition. This amended petition was not offered until after the answer and reply had been filed, and not until the third day after the trial had begun, and had been proceeding. In such a state of case it is a matter within the sound discretion of the trial court to permit an amendment to pleadings. This pleading which was offered is only a statement in amplified form of the allegations of the original petition, and while it does not specifically allege any particular portion of the machinery or equipments of the electric light company as being out of repair, or as being a particular cause resulting in the death of the decedent, it is substantially an allegation that all the machinery, lines, and equipments were out of repair, or not properly fixed and placed, and that the appellee was negligent in thus allowing the machinery, equipments, transformers, and other parts of its plant to be out of repair, or not properly constructed, and its failure to provide devices which were considered necessary to make the operation of an electric light plant safe, so as to prevent any loss of life or injury by reason of its operation, and furthermore, it contained a statement of the law, or what it alleged to be the law, applying to a corporation engaged in generating and furnishing electric light. It will be borne in mind that the appellee, before it filed its answer, filed a written motion, and moved the court to require the appellant to make more specific her petition in its allegations as to the specific place, or thing, or act or condition of negligence on the part of the appellee which was complained of. The court overruled this motion. It does not appear whether it was done upon the objection of the appellant or not. We do not think the court abused its discretion in refusing to allow this amendment to be filed, because the allegations of the petition are sufficient to allow proof of any act of negligence on the part of the appellee which resulted in the death of the decedent. Such negligence would consist of any improper operation of the machinery, or the use of incompetent employés, or the failure to use and maintain wiring properly made and sufficient to convey the electrical current in safety, or transformers not in good condition and repair, so as to reduce the voltage passing over the primary wires and on to the secondary wires, or any failure to keep the wiring properly insulated, or the failure to use any necessary devices for the protection of persons from this electrical current, or to fail to inspect for the discovery of defects or want of repairs, or any other negligence, or failure to perform its duty as required by law. The appellee would have more just cause of complaint for the failure of the petition to make definite and certain the allegations in regard to the cause, or acts or conditions in which the alleged negligence consisted and which is alleged to have caused the injury, but under the interpretation put upon the petition by the court, we do not see how the refusal to allow this amended petition to be filed could have been prejudicial to the appellant.

The failure to allow it to be filed, on account of the allegation in it that the damages which the estate of the decedent had suffered was $100,000, instead of $50,000, as alleged in the original petition, was not prejudicial, as the appellant failed of any recovery at all.

The error alleged because the court refused to allow the third amended petition to be filed was not prejudicial, for the reason above stated, as it contained only an allegation that the damages should be $100,000, in place of $50,000.

The third ground relied upon for a new trial are alleged errors of the court in rejecting and refusing to admit material and competent evidence on behalf of the appellant upon the trial and permitting incompetent evidence to be heard over the objection of appellant. Complaint is made that the court permitted the witness Starling to be asked and to answer the question, "If the cord had been tied, would there have been any trouble?" and to which he answered "No." This witness, at the time, was testifying with reference to his efforts to separate decedent from the light, which he was holding after his death, and the question only meant that, if the cord had been tied to something, the decedent could have been pulled away from it, and his grasp loosened. There was certainly nothing prejudicial either in the question or answer. The jury must have so understood it. Objection is made to the testimony of this witness because he was allowed to state that, after the separation of the decedent from the light, it was lying upon the floor and set the floor on fire; "that there was nothing unusual about that." This seems to have only meant that it was nothing unusual in electrical operations for a light, where the globe was broken and forms an arch upon the floor, and coming in contact with a wet floor like that was, to set it on fire. The statement of this witness that when he took the decedent by the ankle to remove him, he was receiving about 110 volts of electricity, and not exceeding 250 volts, was a competent statement for the witness to make, in the light of the fact that he was an electrical expert, and had had experience in receiving shocks frequently, and that in the position in which he was holding decedent by the ankle, he received practically the same amount of electricity, while in that situation, as the decedent did. Of course that was a mere matter of opinion, but that is all the evidence, from the nature of the circumstances, that could be had upon a question of that kind, and the witness seemed qualified by experience and education to express such an opinion, in evidence.

After the witness, John Hash, stated that shortly after the death of the decedent, he saw some person climbing the electric light pole in front of the decedent's place of business, but that he did not know who it was, the court refused to allow the witness to answer whom he believed it to be. This was clearly correct, because the evidence does not show in any way that, whoever it was who went up the electric light pole, such person had any connection with the appellee in this case, by any fact or circumstance, and the mere guess of the witness, formed upon reasons possibly other than his knowledge acquired by personal observation, would have been prejudicial to the appellee.

D. Z. Gibson, who testified that he was a graduated embalmer of dead bodies, and that he had seen the bodies of two persons who had been electrocuted, and after describing the condition of the body of the deceased and the condition of his veins, arteries, and blood, was asked to state what, in his opinion, was the cause of the death. This was objected to, and the court sustained the objection, when the avowal was made, that if permitted to answer, he would answer that in his opinion his death was caused by electricity. The court was correct in this ruling, because the witness was not asked to confine his opinion to the condition in which he found the body of the decedent, and his limited experience as to persons who had come to their death by electrocution was not sufficient to qualify him to give an opinion upon that subject.

Eugene Smith gave testimony to the effect that some time after the death of the decedent, but he was not able to say how long after his death, or at what time, he observed that the insulation was worn off the wires which came from the pole to the top of the window and into the building where the decedent's death occurred. This evidence was excluded, and we think properly so, because it was too indefinite as to time, and was no evidence of the fact that the wire was in that condition at the time of the decedent's death.

The witness, Squires, after making testimony qualifying himself to testify as an expert in the operation of electricity and electrical apparatus, stated that about seven months after the death of the...