Staab v. Rocky Mountain Bell Telephone Co.

• Decision Date: 01 February 1913
• Citation: 23 Idaho 314,129 P. 1078
• Court: Idaho Supreme Court
• Parties: LAURA STAAB et al., Respondents, v. ROCKY MOUNTAIN BELL TELEPHONE CO. et al., Defendants, and IDAHO-OREGON LIGHT & POWER CO., Appellant

129 P. 1078

23 Idaho 314

LAURA STAAB et al., Respondents, v. ROCKY MOUNTAIN BELL TELEPHONE CO. et al., Defendants, and IDAHO-OREGON LIGHT & POWER CO., Appellant

Supreme Court of Idaho

February 1, 1913

NEGLIGENCE-ELECTRIC WIRES-DANGEROUS AGENCY-DUTY OF CARE COMMENSURATE WITH DANGER-INJURIES SUSTAINED WHILE IN LINE OF DUTY-CONTRIBUTORY NEGLIGENCE-EXCESSIVE VERDICT.

1. A company engaged in generating, transmitting and distributing a highly dangerous and unseen force like electrical energy is chargeable with a legal duty of handling it with such care and caution as to protect the public against its dangers, and especially to protect those who may be called upon to come near or in close contact with the transmission wires, from dangers which they may not see or appreciate or may readily overlook.

2. Where an electric light and power company maintains its poles within a foot of the poles of a telephone company and carries and maintains live wires charged with electrical current, it is chargeable with notice that laborers and linemen working on the telephone company's poles and wires may and will come in close contact with the electric light wires, and such company is chargeable with the duty of protecting such persons against receiving injury from the current carried on such wires, and this duty is commensurate with the danger apparent.

3. Where a telephone lineman known as "trouble man," while seated on a messenger wire, was suddenly and without apparent cause precipitated onto a live wire maintained by an electric light company immediately under the telephone wires and was suddenly electrocuted, and no cause is shown for the fall, and he is afterward found to have had an electric burn on the foot which was nearest to the electric light wires held, that the evidence is sufficient to justify the jury in returning a verdict that his death was primarily caused by an electric shock, and the court and jury may presume in the absence of proof to the contrary that the person who lost his life under such circumstances exercised reasonable care and precaution in an effort to preserve his life, and that he did not expose and subject himself to injuries and risks that he might reasonably have anticipated or expected would inflict mortal injuries.

4. Where an employee of a telephone company known as a "trouble man" was employed at a regular monthly salary and his regular hours of employment were from 7:30 in the morning to 5:30 in the evening, and it is shown that it was his duty to respond to calls at all times when needed and he was responding to such a call after regular hours and received a fatal injury, held, that he was not a trespasser or mere volunteer on the company's property, but that he was engaged in the line of his duty and received his injury while in the discharge of such duty.

5. Contributory negligence is a matter of defense in this state and where the question is presented and there is a conflict of evidence, the jury are the exclusive judges of the weight and preponderance of the evidence and may determine for themselves as to whether the defense of contributory neglignce has been made out.

6. Where a telephone company and an electric light company were both made defendants in an action for damage, it was not error for the plaintiff to elect as to which of the defendants it would proceed against and dismiss as to the other defendant.

7. Instructions of the court and rulings on the admission of evidence examined and held no reversible error was committed.

8. Where a husband and father in good health, thirty-two years of age, earning a monthly salary of $85, was electrocuted through negligence of an electric light company by coming in contact with a live wire, held that a verdict and judgment for $15,000 in favor of the widow and two minor children is not excessive.

APPEAL from the District Court of the Third Judicial District for Ada County. Hon. Chas. P. McCarthy, Judge.

Action for damages. Judgment for the plaintiffs and defendant appealed. Affirmed.

Judgment affirmed. Costs awarded in favor of respondent.

Wyman & Wyman and Cavanah, Blake & MacLane, for Appellant.

The plaintiff must show that the alleged negligence was the proximate cause of the injury, and this fact cannot be presumed through inference or conjecture. (Elliott v. Alleghany Light Co., 204 Pa. 568, 54 A. 278.)

The verdict should have been directed for the defendant, as there was no evidence of the cause of death, and the cause could only be inferred by conjecture. (McDonald v. Edison Illuminating Co., 208 Mass. 199, 94 N.E. 259.) Deceased was a licensee or volunteer.

Decedent not being engaged in performing any duty of his employment at the time he met his death, was not entitled to the status of a servant as against the telephone company and, being without rights as to that company, the light company was still less under any obligation to look out for his safety, and deceased having voluntarily placed himself in a position of known obvious danger, this defendant is not liable in damages for the accident that occurred. (2 Labatt, Master and Servant, sec. 633; McCue v. National Starch Co., 142 N.Y. 106, 36 N.E. 809; Ray v. Diamond Steel Co., 2 Penne. (Del.) 525, 47 A. 1017; Ind. Natural Gas Co. v. Marshall, 22 Ind.App. 121, 52 N.E. 232; Mellor v. Merchants' Mfg. Co., 150 Mass. 362, 23 N.E. 100, 5 L. R. A. 792; Allen v. Hixson, 111 Ga. 460, 36 S.E. 810; Knox v. Pioneer Coal Co., 90 Tenn. 546, 18 S.W. 255; Mickelson v. New East Tintic Ry. Co., 23 Utah 42, 64 P. 463; Pittsburgh C. & St. L. Co. v. Adams, 105 Ind. 151, 5 N.E. 187; Hurst v. Chicago R. I. & P. Co., 49 Iowa 76; Cumberland Telegraph Co. v. Martin, 116 Ky. 554, 105 Am. St. 229, 76 S.W. 394, 77 S.W. 718, 63 L. R. A. 469; Sullivan v. Boston & A. R. C., 156 Mass. 378, 31 N.E. 128.)

The deceased was guilty of contributory negligence, which was the proximate cause of his death. (Rippetoe v. Feely, 20 Idaho 619, at 637, 119 P. 465; Denver City Tramway Co. v. Gustafson, 21 Colo. App. 478, 121 P. 1015; Anderson v. Inland Telephone & Telegraph Co., 19 Wash. 575, 53 P. 657, and cases there cited, 41 L. R. A. 410; Columbus R. Co. v. Dorsey, 119 Ga. 363, 46 S.E. 635; Rowe v. Taylorville Electric Co., 213 Ill. 318, 72 N.E. 711.)

The admission of evidence calling for conclusions of witnesses was reversible error. (Shafter v. Evans, 53 Cal. 32; Redfield v. Oakland Ry. Co., 112 Cal. 220, 43 P. 1117; Smuggler Mining Co. v. Broderick, 25 Colo. 16, 71 Am. St. 106, 53 P. 169.)

The damages are excessive. (Holt v. Spokane Ry. Co., 3 Idaho 703, 35 P. 39; York v. Pacific Nor. Ry. Co., 8 Idaho 574, 69 P. 1042; Anderson v. Great Northern Ry. Co., 15 Idaho 519, 99 P. 91.)

The fact of accident carries with it no presumption of negligence on the part of the employer, and it is an affirmative fact for the injured employee to establish that the employer has been guilty of negligence. In the latter case it is not sufficient for the employee to show that the employer may have been guilty of negligence; the evidence must point to the fact that he was. (Patton v. Texas & P. R. Co., 179 U.S. 661, 21 S.Ct. 275, 45 L.Ed. 361; Adams v. Bunker Hill etc. Min. Co., 12 Idaho 649, 89 P. 624, 11 L. R. A., N. S., 844.)

Frawley & Block and Hawley, Puckett & Hawley, for Respondent.

The decedent was not a mere trespasser. It does not make any difference whether he was ordered to work or not, if the work that he did was for the benefit of his employer, if it was tacitly ordered or acquiesced in by his immediate superior.

Whether or not he was rightfully upon the pole as an employee is a matter for a jury if inferences can be reasonably drawn from the evidence. (Labatt, Master and Servant, p. 1867; Schilling v. Abernethy, 112 Pa. 437, 56 Am. St. 320, 3 A. 792; Newark etc. Co. v. Garden, 78 F. 74, 23 C. C. A. 649, 37 L. R. A. 725; Catlett v. Young, 143 Ill. 74, 32 N.E. 447; Pennsylvania Co. v. Gallagher, 40 Ohio St. 637, 48 Am. Rep. 689; Patnode v. Warren Cotton Mills, 157 Mass. 283, 34 Am. St. 275, 32 N.E. 161; Evansville & R. R. Co. v. Maddux, 134 Ind. 571, 33 N.E. 345, 34 N.E. 511; Broderick v. Detroit Union & R. Depot Co., 56 Mich. 261, 56 Am. Rep. 382, 22 N.W. 802; Welch v. Maine Central R. Co., 86 Me. 552, 30 A. 116, 117, 25 L. R. A. 658; Collins v. Cincinnati etc. R. Co., 13 Ky. Law Rep. 670, 18 S.W. 11.)

The appellant owed a duty to all persons whose presence upon the pole was to be reasonably anticipated. (Newark L. & P. Co. v. Garden, Admrs., etc., supra; Thompson on Negligence, par. 801; Guinn v. Delaware & A. T. Co., 72 N.J.L. 276, 111 Am. St. 668, 62 A. 412, 3 L. R. A., N. S., 988; Braun v. Buffalo General Electric Co., 200 N.Y. 484, 140 Am. St. 645, 24 N.E. 206, 21 Ann. Cas. 370, 34 L. R. A., N. S., 1089; Denison Light & Power Co. v. Patton (Tex. Civ. App.), 135 S.W. 1040; Daltry v. Media Electric L. H. & P. Co., 208 Pa. 403, 57 A. 833.)

The appellant cannot complain that the phone company also was negligent. Each company is responsible for its own negligence. (Trammell v. Columbus R. Co., 9 Ga.App. 98, 70 S.E. 892; Illingsworth v. Boston etc. Light Co., 161 Mass. 583, 37 N.E. 778, 25 L. R. A. 552; Musolf v. Duluth-Edison Co., 108 Minn. 369, 122 N.W. 499, 24 L. R. A., N. S., 451; Denison Light & Power Co. v. Patton (Tex. Civ. App.), 135 S.W. 1040; Herbert v. Lake Charles I. L. & W. Co., 111 La. 522, 100 Am. St. 505, 35 So. 731, 64 L. R. A. 101; Knowlton v. Des Moines-Edison Light Co., 117 Iowa 451, 90 N.W. 818.)

The appellant owed the highest duty toward decedent of insulating its wires. (Thompson on Negligence, par. 800; Colusa etc v. Monahan, 162 F. 276, 89 C. C. A. 256; Bourke v. Butte & Electric Light Co., 33 Mont. 267, 83 P. 470; Griffin v. United Electric Light Co., 164 Mass. 492, 49 Am. St....