Smith v. Milwaukee Elec. Ry. & Light Co.

• Decision Date: 23 February 1906
• Parties: SMITH v. MILWAUKEE ELECTRIC RY. & LIGHT CO.
• Court: Wisconsin Supreme Court

127 Wis. 253

106 N.W. 829

SMITH

v.MILWAUKEE ELECTRIC RY. & LIGHT CO.

Supreme Court of Wisconsin.

Feb. 23, 1906.

Appeal from Circuit Court, Racine County; E. B. Belden, Judge.

Action by Gertrude E. Smith, as administratrix of the estate of John J. Smith, against the Milwaukee Electric Railway & Light Company. From a judgment in favor of defendant, plaintiff appeals. Reversed.

Plaintiff, as administratrix of the decedent's estate, brings this action to recover the damages resulting from his death, which is alleged to have been caused by the negligence of the defendant. It is alleged that John J. Smith, the deceased, was in the employ of the defendant on July 20, 1904, and that, while in the discharge of his duties, he came in contact with a live electric wire of defendant's electric light plant in the city of Racine, and that an electric current of strong potentiality was thereby caused to pass through his body and that this resulted in his immediate death. Negligence is charged upon two grounds: (1) That the copper wires charged with an electric current of high voltage, “were negligently and improperly maintained (as part of said plant) by the said defendant, in that the insulation thereof was defective, faulty, worn, and insufficient, as the defendant well knew or should have known; and, (2) furthermore, in that the said wires did not constitute a perfect and distinct circuit well and safely insulated from the earth, but had been allowed by the negligence of the defendant to become connected with the earth, thereby causing what is known as a ‘ground,’ as defendant well knew or should have known in the exercise of ordinary care. That the said ground was a hidden defect highly dangerous to any person who might be upon the said pole; the means of knowledge thereof being entirely within the control of defendant.” It is claimed that for these reasons the place upon the pole where the decedent worked was rendered an unsafe place, and the pole and wires were unsafe and dangerous appliances. Defendant denies the negligence charged and alleges contributory negligence on the part of the decedent. It appears that on the day in question, the decedent, in the course of his employment as lineman, worked upon one of the poles of defendant's plant, under the direction of the superintendent of the company, and that while so engaged in his work he was killed in the manner above described. The pole in question had several cross-arms, to which wires were attached; the upper ones sustained telephone wires, while the lower ones carried electric light wires. At the time of the accident, decedent had rested his weight on the fifth cross-arm from the top and was working on the wires above the fourth cross-arm. In doing this work, his body came in contact with a live wire on the fourth cross-arm and from it came the electric current which resulted in his death. The decedent had worked for a number of years prior to the accident as a lineman on electric plants. On cross-examination, plaintiff sought to elicit evidence of a conversation between the decedent and an officer of the defendant, part of which had been introduced by the defendant, as to a shutting off of the current while the work on the pole and the wires in question was being done. The court refused to receive this evidence and also excluded it on rebuttal as being irrelevant and immaterial. At the conclusion of the introduction of the evidence, defendant moved for the direction of a verdict in its favor. The court so directed a verdict, upon the ground, among others, that the evidence showed that the decedent was sufficiently warned of the dangers incident to his employment and that he therefore assumed the risk. Judgment was awarded dismissing the complaint and for costs. This is an appeal from such...