Straight v. Western Light & Power Co.

• Decision Date: 02 April 1923
• Docket Number: 10301.
• Citation: 214 P. 397,73 Colo. 188
• Court: Colorado Supreme Court
• Parties: STRAIGHT v. WESTERN LIGHT & POWER co.

214 P. 397

73 Colo. 188

STRAIGHT v. WESTERN LIGHT & POWER co.

No. 10301.

Supreme Court of Colorado, En Banc.

April 2, 1923

Error to District Court, Boulder County; George H. Bradfield Judge.

Action by Lew V. Straight against the Western Light & Power Company. Judgment for defendant, on a directed verdict, and plaintiff brings error.

Affirmed.

Dana Blount & Silverstein, of Denver, for plaintiff in error.

Paul W. Lee and George H. Shaw, both of Fort Collins, for defendant in error.

BURKE J.

Plaintiff in error brought this action against defendant in error for damages for injuries sustained by an electric shock alleged to have been caused by the latter's negligence. For convenience the parties are hereinafter designated as in the trial court. At the close of all the evidence, the court, on defendant's motion, directed a verdict in its favor, and to review the judgment thereupon entered this writ is prosecuted.

Defendant operated an electric power plant near Lafayette, Colo. It contracted with Hendrie & Bolthoff to cover the roof thereof with certain roofing material. Plaintiff furnished the labor for this job, and worked thereon personally, under contract with Hendrie & Bolthoff. Certain heavily charged electric wires ran through this roof and were insulated only from one to two feet above it. One Breiting assisted in the work. Plaintiff cut and rolled the material, Breiting spread hot asphalt on the roof, and plaintiff placed the roofing thereover and fitted it down. While so engaged, and without touching the high-tension wires (as he and Breiting testify) plaintiff received an electric shock which threw him against the wires and caused his injuries. His contention is that this shock came from 'leakage' or 'creepage' of current due to improper construction. His position here is that there was sufficient evidence to carry the case to the jury and that the testimony of one of defendant's witnesses was improperly admitted. Contributory negligence was alleged and denied, and defendant insists that proof thereof was overwhelming and uncontradicted. If so, no other question need be considered.

We limit our examination to one circumstance, put in evidence by plaintiff and relied upon by defendant as proof of contributory negligence. Plaintiff and Breiting began work about 9:30 a. m., and the injury to plaintiff was sustained about 3:30 p. m. About 11 a. m. these men had a peculiar experience which is thus fairly described in plaintiff's brief:

'Mr. Breiting was then standing outside of, but near, the framework and at a place where there were no wires within eight feet of the roof. The plaintiff Mr. Straight suddenly heard Mr. Breiting scream and saw him jerked or rocked or jumped quite a little ways out to the middle of the roof. When Straight came to him and asked what was the matter, Breiting said he didn't know, but his arm was up and he was jerking and holding onto his leg. His shirt had two little holes burnt in it at the elbow about the size of match ends. These holes were burnt right into his arm, and it was about half an hour before they went back to work again. They did not inquire or report about it to anybody because they had been assured that everything was perfectly all right as long as they didn't touch any of the high-tension wires.'

Plaintiff testified that two days before he began the work he was on the...