Snider v. Washington Water Power Co.

• Decision Date: 15 January 1912
• Court: Washington Supreme Court
• Parties: SNIDER et al. v. WASHINGTON WATER POWER CO.

120 P. 88

66 Wash. 598

SNIDER et al. v. WASHINGTON WATER POWER CO.

Supreme Court of Washington

January 15, 1912

Department 2. Appeal from Superior Court, Spokane County; Wm. A. Huneke Judge.

Action by Laura Snider, as the widow of Silas Snider, and others against the Washington Water Power Company. From an order granting a new trial after verdict for plaintiffs, they appeal. Affirmed.

W. H. Plummer, for appellants.

Post Avery & Higgins, for respondent.

ELLIS J.

This is an appeal from an order granting a new trial on the ground of misconduct of appellants' counsel.

The appellants, the widow and minor children of Silas Snider deceased, brought this action to recover for his death, which it is claimed was caused by the negligence of the respondent. The respondent owned and operated Natatorium Park, a place of amusement near the city of Spokane. Among the contrivances for amusement was a circular swing operated by electricity. It consisted of a center upright pole some 70 feet high, with cross-arms located at a point about 60 feet from the ground, extending out horizantally a distance of 16 or 18 feet, from the ends of which depended by means of cables the baskets or cars in which patrons of the amusement sat while being swung round the center pole by the circular movement of the cross-arms. At night the swing was illuminated by a liberal distribution of electric lights at various points on the apparatus. The electricity for lighting was carried up the center pole to certain metallic rings or bands placed about the pole at a point immediately below the cross-arms and transmitted to the lights on the cross-arms by means of metallic brushes fastened to the cross-arms and making continuous contract with the metallic bands as the cross-arms swung around the pole. There were three of these metallic bands. When charged with electic current, the upper band carried about 116 volts, the lower band the same voltage, while the intermediate band was neutral. A person touching at the same instant the middle and lower or the middle and upper bands would thus receive a current of about 116 volts. If touching at the same instant the upper and lower bands, he would receive about 232 volts. On the pole was a metallic ladder leading to the point of attachment of the cross-arms. The deceased was in the employ of the respondent, whether as general foreman of the park or as foreman of carpenters, the evidence is conflicting. It is claimed that he climbed the ladder in the performance of his duty to adjust the cross-arms, and, inadvertently coming in contact with the metallic bands while the swing was lighted, received a shock which either killed him, or caused him to fall from the ladder a distance of some 60 feet to the ground causing his death. The negligence complained of is that the metallic bands were wholly uninsulated and unprotected in any manner, and that the deceased had no knowledge and received no warning that they were charged with electric current so as to be dangerous. The absence of insulation was apparently admitted, but there was competent evidence tending to show that deceased had knowledge of this fact and had warning of the danger from contact with the bands. The jury found for the appellants and assessed the damages at $22,781. We state the facts thus fully in order that the bearing of the misconduct chiefly complained of may be appreciated.

One of the vital questions in issue was as to whether the deceased touched both or either of the charged bands, and if he did what would be the effect of such contact? An expert practical electrician was on the stand, and, in answer to hypothetical questions, had testified that a person touching one of the charged bands and the neutral band while standing upon the metallic ladder, and receiving about 110 volts, would experience only a slight shock and would not be burned; that if touching both of the charged bands and receiving about 220 volts he would get more of a shock, but would not be burned. The witness further testified from his own experience that he himself had received a current of 600 volts at one time. That he had, in testing lights, often received as much as 110 volts and had never experienced ill effects from it. On cross-examination he was asked if 500 volts is not ordinarily fatal? He answered in the negative, and stated that he had known of many such cases in which no serious results ensued. Counsel for appellant then asked: 'Q. Did you ever read the case of Ohrstrom v. Tacoma, decided by the Supreme Court of Washington here just a short a short time ago and reported in 57 Wash. at page 122, 106 P. 629, where that court has held as a matter of law that 500 volts is ordinarily fatal to human life? A. I never knew of that. Q. Never knew anything about that. All right. Mr. Post: Let me see the case. Pass it over. Mr. Plummer: Right there, in so many words. Mr. Post: I didn't ask you to tell me about it. I just asked you to pass me the case, and I will read it myself and see what it says.' After counsel for respondent had an opportunity to examine the authority, he interposed objection, and the following took place: 'Mr. Post: I wish now, if your honor pleases, to object to the statement made by Mr. Plummer that there was a case in 57 Wash., 106 Pac., in which the court, as a matter of law, had held that 500 volts of electricity was fatal. I except to it because it is not true, and I shall ask your honor at this time, when you come to charge the jury, to charge the jury it is not true. There was a certain complaint and a certain allegation, and the court did not pass on the question of law at all. Mr. Plummer: It certainly makes the assertion in so many words. Mr. Post: All right. Submit that to the court and the court will pass upon it in all due time. Mr. Plummer: The plaintiffs except to the statement of counsel made in the presence of the jury, to the effect that it is not true that the Supreme Court of this state has in its opinion, in the case suggested, declared that it would take judicial notice of the fact that 500 volts was ordinarily fatal. I am excepting to the part of Mr. Post's statement where he says it is not rue. The Court: Both of your exceptions are in the record. I will look at this case later.'

When the court had prepared his instructions for the jury, they were submitted in chambers to counsel for both sides. Among them was an instruction to disregard the statement by counsel for appellant that the Supreme Court had held as a matter of law that 500 volts of electricity would be fatal. After some discussion the court announced his intention to so instruct, and counsel for appellant then said that he desired to announce in open court that he had been mistaken when he made the statement complained of and had then misunderstood the decision. No response was made to this either by the court or by counsel for respondent. When court and counsel had returned to the courtroom and the court was about to charge the jury, counsel for appellant arose, and the following statement and exception were made and taken: 'If the court please, during the testimony when Mr. Ingersall was on the stand, I asked him if the Supreme Court of this state, in the case of Ohrstrom v. Tacoma, had not held as a matter of law that 500 volts were usually fatal. The opinion I glanced at hurriedly at that time indicated to my mind that was the holding of the court, but I find that simply held that was the evidence in the case, and I wish to ask the court to instruct the jury to disregard the reference made by myself to that opinion, because it was simply made by myself inadvertently and not to mislead the jury. Mr. Post: I except to the statement of counsel as misconduct and undertaking to tell the jury what was the evidence in that case.' It is manifest that counsel for appellant thus placed before the jury the statement of an authoritative finding on evidence fully as damaging as the misconduct originally complained of. The court then gave his instructions, and among them one as follows: 'In this connection it is my duty to instruct you that you should disregard the reference made by the attorney for the plaintiffs to the case of Ohrstrom v. Tacoma, a case from which he read in 57 Wash. at page 121, 106 P. 629, saying that said case held as a matter of law that 500 volts of electricity is ordinarily fatal to human life. It is my duty to inform you that said case does not so hold as a matter of law.' It will be noted that this instruction did not in any manner refer to or tend to remove any effect the statement of counsel as to the evidence in the Ohrstrom Case may have had upon the jury.

Special interrogatories were submitted to the jury. One of them, with the answer, was as follows: 'Question 1: In what capacity was Silas Snider employed at the time of his death, as carpenter foreman, or general foreman? Answer: Carpenter foreman.'

In his closing argument to the jury counsel for appellant used the following language: 'Mr. Post told you, referring to interrogatory No. 1 that is propounded to you, 'in what capacity was Silas Snider employed at the time of his death a carpenter foreman, or a general foreman,' and you have got to write in there which one, whether he was a carpenter foreman or a general foreman. Mr. Post said it did not make much difference to him what you wrote in there, but that as a matter of fact he did assume the risk. And Mr. Post knows that he is trying to convince you by all the argument he can possibly muster, by all his ingenuity, by all his testimony, he is trying to have you put an answer in there saying that he was general foreman, because he knows it does make a difference in this case. And when that is put in there, he will contend that, if he was...