Southwestern Gas & Electric Company v. Murdock

• Decision Date: 06 April 1931
• Docket Number: 235
• Citation: 37 S.W.2d 100,183 Ark. 565
• Parties: SOUTHWESTERN GAS & ELECTRIC COMPANY v. MURDOCK
• Court: Arkansas Supreme Court

37 S.W.2d 100

183 Ark. 565

SOUTHWESTERN GAS & ELECTRIC COMPANY v. MURDOCK

No. 235

Supreme Court of Arkansas

April 6, 1931

Appeal from Logan Circuit Court, Southern District; J. O. Kincannon Judge; affirmed.

Judgment affirmed.

Evans & Evans and Arnold & Arnold, for appellant.

Roy Dunn and John P. Roberts, for appellee.

MEHAFFY J. Mr. Justice SMITH dissents.

OPINION

MEHAFFY, J.

The appellee brought suit in the Logan Circuit Court alleging that on November 10, 1929, while he was in the exercise of due care and was working upon an automobile belonging to Dr. A. R. Hedrick in appellee's garage in Booneville, Arkansas, he received an electric shock, throwing him against the automobile, burning his body, injuring his back and spine, and otherwise injuring him. The negligence alleged is that the appellant neglected and refused to construct the transformers, distributors, and wiring of its electric system so that the wires coming into appellee's garage, instead of carrying 110 voltage, carried more than 350.

Appellant answered, denying all the material allegations in the complaint, and pleaded contributory negligence. There was a verdict and judgment in favor of appellee for $ 2,000. The case is here on appeal.

Appellant contends first, that the court erred in giving instruction No. 5, because it did not take into consideration the defense of contributory negligence. After a careful examination of the record, we have reached the conclusion that there is no evidence tending to show that appellee was guilty of contributory negligence, and there was therefore no error in giving the above instruction.

It is next contended by the appellant that Murdock was not entitled to recover on account of his own negligence. Contributory negligence, if shown by the evidence, would be a complete bar to appellee's right to recover. Appellant cites numerous cases to support its contention that appellee cannot recover if he was guilty of any negligence. It is unnecessary to discuss these authorities, but sufficient to say that this court has many times held in actions of this character that, if the injured party was guilty of negligence which in any way contributed to his injury, so that but for his contributory negligence the injury would not have happened, he cannot recover.

The only evidence in the record which appellant claims tends to show contributory negligence is the evidence of three witnesses, Roy Cannon, John Adney, and the appellee. There is no evidence in the record tending to show that either Cannon or Adney ever said anything to appellee about the conditions they testified about or that he knew anything about them. Plaintiff's own evidence shows, and this is undisputed, that he had received shocks many times in using the wire when it contained 110 volts. There is nothing in the testimony to show that he either knew of or appreciated any danger. He knew that if there were 110 volts it would sometimes shock one, but also knew that it was not dangerous.

It was the duty of the appellant to furnish proper and safe appliances, and the appellee had a right to assume that appellant had done this, and he was not guilty of negligence contributing to his injury unless he knew, or by the exercise of ordinary care could have known, that the appellant had not performed its duty, and the evidence does not show that he knew this. There is no evidence in the record tending to show that he knew of or appreciated the danger. He testified that he talked to the parties after this injury, but there is no evidence that he received any shock prior to the one he complains of in this suit that would indicate there was any danger.

Appellant argues, however, that the lights would burn out and the machinery run faster. Witness testified that about four lights burned out in twenty-four hours, but it was entirely reasonable for him to think this was caused by...