Theby v. Wis. Power & Light Co.

• Decision Date: 08 January 1929
• Parties: THEBY v. WISCONSIN POWER & LIGHT CO.
• Court: Wisconsin Supreme Court

197 Wis. 601

222 N.W. 826

THEBY

v.WISCONSIN POWER & LIGHT CO.^a1

Supreme Court of Wisconsin.

Jan. 8, 1929.

Appeal from a judgment of the circuit court for Dane County; A. G. Zimmerman, Judge.

Action by Nellie Theby, as administratrix of the estate of E. J. Theby, deceased, against the Wisconsin Power & Light Company. Judgment for plaintiff, and defendant appeals. Modified and affirmed.--[By Editorial Staff.]

Personal injuries. This action was begun on April 20, 1927; judgment entered on April 9, 1928. On April 30, 1926, E. J. Theby, plaintiff's deceased husband, was injured by electricity while in the employ of the city of Columbus. At the time he was injured he was working on a pole belonging to the municipal utility located at the southwesterly corner of the intersection of James street and Water street in the city of Columbus. James street runs in an easterly and westerly direction, and is intersected at right angles by Water street running in a northerly and southerly direction. The deceased was 23 years of age, married, and left a widow to whom a daughter was born on July 1, 1926. The pole on which the deceased was working carried thirty-nine city wires. The wires were supported by cross-arms, three of which extended in an easterly and westerly direction and are referred to as line arms; the other two crossarms extended in a northerly and southerly direction, and are referred to as buck arms. These cross-arms are all similar, and are 4 1/2 inches wide. The topmost cross-arm is a line arm that is extended in an easterly and westerly direction. The line arms are spaced 24 inches apart, center to center. The top buck arm is about 4 inches below the top line arm, and the second buck arm is about 4 inches below the second line arm. The topmost arm on the pole (that is, the top line arm) carried six 2,300-volt wires, which were energized. There were three 2,300-volt wires leading west on the buck arm about 4 inches below this top line arm. There were three 2,300-volt wires leading from the second cross-arm on the top of the buck arm. There were three wires on the south side of this same cross-arm or top buck arm, street light wires leading west, which were not energized. They carried current when in use for street lighting.

The defendant maintained a high-tension line running through the city of Columbus in an easterly and westerly direction parallel with James street. At the point in question, the high-tension line was supported by two poles; one being 121 1/2 feet north of the city pole, and the other being 70 feet 4 inches south of the city pole. In a general way the high-tension wires supported by these poles were above and slightly to the east of the pole upon which the deceased was working. On the day of the accident, the deceased was sitting facing toward the north with the three wires on the top buck arm behind him and his feet resting on the second cross-arm. He had a belt around his waist, and he was strapped to a brace running from the top cross-arm down to about the second cross-arm. Theby was standing on the third cross-arm or second line arm of the pole. The city was engaged in removing its wires from the pole in question, and Theby was to make a temporary installation of three city wires. One Mielenz was working with the deceased, and was about 19 feet from the pole and facing the pole when he heard an explosion. He looked up and saw Theby go backward, his hands going up backward and to the sides. Dr. Poser, who was about one block away, saw the deceased's body fall backwards, but did not see anything else. Theby's clothes caught fire, and he was calling frantically for help. A fellow workman named Daher started to climb the pole, but was called back, and it was suggested to him that he call the powerhouse, which he did, and all the switches were thrown off. After being informed that the switches were turned off Daher climbed the pole for the purpose of going to the aid of the deceased, when a ball of electricity hit him right under the chin, or somewhere it seemed, and Daher fell from the pole and was instantly killed.

The city received its electric current from the defendant company. The defendant company was asked by telephone to cut off its high line, which was done, and thereafter Theby's body was removed from the pole, his clothes still burning, about 20 or 25 minutes after the accident. The deceased was taken to the hospital, and died about 6 o'clock the following day. It was claimed that the defendant company was negligent in two respects: First, in failing to maintain a proper clearance between the lowest high-tension wire and the top of the city pole; and, second, in failing to maintain a proper clearance between the lowest high-tension wire and the top wires of the city.

The case was submitted to the jury upon a special verdict, which found as follows:

“Question 1. Was there a want of ordinary care on the part of defendant Wisconsin Light & Power Company at the time and place of the accident? (A) As to clearance between defendant's wire and the top of the city pole? Answer: Yes. (B) As to clearance between defendant's wire and the top wires of the city? Answer: Yes.

Question 2. If you answer A of question 1 ‘yes' then answer this question: Was such negligence a proximate cause of the accident? Answer: Yes.

Question 3. If you answer B of question 1 ‘yes' then answer this question: Was such negligence a proximate cause of the accident? Answer: Yes.

Question 4. Was there a want of care on the part of defendant of such a kind as to indicate a wilful disregard of the lives or safety of others: (A) As to clearance between defendant's wire and the top of the city pole? Answer: Yes. (B) As to clearance between defendant's wire and the top wires of the city? Answer: Yes.

Question 5. If you answer A of question 4 ‘yes' then answer this question: Was such negligence a proximate cause of the accident? Answer: Yes.

Question 6. If you answer B of question 4 ‘yes' then answer this question: Was such negligence a proximate cause of the accident? Answer: Yes.

Question 7. Was there any want of ordinary care on the part of the decedent, Edward J. Theby, which proximately contributed to his injuries and death? Answer: No. Dissenting: Frank Howe.

Question 8. If the court should be of the opinion that the plaintiff should recover, at what sum do you assess the damages: (A) On account of Edward J. Theby's pain and suffering from the time of his injury to the time of his death? Answer: $2,800.00. Dissenting: Frank Howe. (B) On account of the death of Edward J. Theby? Answer: $9,000.

Question 9. If you determine to assess punitory damages then answer this question: What sum do you assess against the defendant as and for punitory damages? Answer: $3,200.00. Dissenting: B. O. Eggum, Frank Howe.”

Upon the coming in of the verdict there were the usual motions by the defendant. The plaintiff made the following election and motion:

“Now comes the above named plaintiff and hereby elects to proceed under the second cause of action set forth in her complaint, and thereupon moves the court--

First: That judgment be rendered upon the verdict of the jury herein in favor of the plaintiff and against the defendant for gross negligence upon said second cause of action, or

Second: That the answers to question number 1, and subdivisions A and B, and to questions numbered 2 and 3 of the special verdict herein be changed from ‘yes' to ‘no,’ and that upon such verdict, as changed, judgment be rendered in favor of the plaintiff and against the defendant for gross negligence upon said second cause of action, or

Third: That judgment be rendered upon the verdict in favor of the plaintiff and against the defendant for gross negligence upon said second cause of action notwithstanding the affirmative answers by the jury to question numbered 1, Subdivisions A and B, and questions numbered 2 and 3 of the special verdict.”

Thereupon judgment was entered in favor of the plaintiff and against the defendant for $15,000 as found by the jury, from which judgment the defendant appeals.

Schubring, Ryan, Clarke & Petersen, of Madison, and Hoyt, Bender, McIntyre & Hoyt, of Milwaukee, for appellant.

Bloodgood, Kemper & Bloodgood, of Milwaukee (A. K. Stebbins, of Milwaukee, of counsel), for respondent.

ROSENBERRY, J.

The propositions urged here on behalf of the defendant may be broadly stated as follows: First, that the evidence offered and received upon the trial does not sustain the finding of the jury as to the negligence of the defendant as to clearance between the defendant's lowest high-tension wire at the top of the city pole and the top wires belonging to the city, nor the finding as to proximate cause. Second, that from the evidence it appears that it is at least as probable, if not more probable, that the deceased was injured by electricity from the city's 2,300-volt line as it was that he was injured by a current from the 66,000-volt line of the defendant. Third, that the deceased was guilty of contributory negligenceas a matter of law. Fourth, plaintiff's election to rely on gross negligence requires dismissal of the complaint; there being no evidence to sustain the finding of the jury in that regard. Fifth, that the plaintiff failed to prove ownership of or right to prosecute the cause of action set out in the complaint. Sixth, that the judgment should be reversed for errors upon the trial: (a) Finding of the jury as to ordinary and gross negligence are inconsistent and cannot support a judgment; (b) the damages are excessive; (c) the trial court erred in instructing the jury; and (d) that the trial court erred in refusing evidence offered by the defendant to establish negligence on the part of the city of Columbus and in refusing to submit appropriate questions in the special verdict relating to the negligence of the city.

[1] We have been favored with exhaustive briefs upon both sides on questions of fact...