Theisen v. Minnesota Power & Light Co.
| Decision Date | 06 August 1937 |
| Docket Number | 31154. |
| Citation | 274 N.W. 617,200 Minn. 515 |
| Parties | THEISEN v. MINNESOTA POWER & LIGHT CO. et al. |
| Court | Minnesota Supreme Court |
Appeal from District Court, Wadena County; Anton Thompson, Judge.
Action by Elizabeth Theisen, as executrix of the estate of John F Theisen, against the Minnesota Power & Light Company and others and the Village of Wadena. Judgment for plaintiff, and defendant Village of Wadena appeals.
Affirmed.
Contributory negligence is not established merely by showing that deceased worked in place of danger, but it must be shown that his conduct was negligent in face of danger.
Syllabus by the Court .
1. Evidence that the superintendent of a village electric system had general authority with respect to the management thereof is sufficient prima facie to establish his authority to act with respect to a particular matter concerning the same.
2. One who permits another to come upon his property must exercise due care to warn such person of the risks of hidden dangers to which he will be exposed by coming there pursuant to the invitation. Whether the warning is sufficient is for the jury.
3. Contributory negligence is not established merely by showing that the deceased worked in a place of danger, it being necessary to show that his conduct was negligent in the face of the danger, which is a question for the jury.
Barron & Barnard, of Wadena, for appellant.
Joseph A. Quinn, of Wadena, and Dell & Rosengren, of Fergus Falls for respondent.
Appeal by defendant village of Wadena from a judgment in favor of plaintiff in an action to recover damages for death by wrongful act. Plaintiff's decedent, John F Theisen, was killed by an electrical discharge from electric wires while attaching a neon sign to a pole of the defendant village, installed to support a street lamp. The pole was directly beneath high-tension wires of a power line maintained by the Minnesota Power & Light Company to conduct electric current. The village pole, 24 feet 7 inches above the ground, was located between two poles used to support the power line, and the wires running between the power line poles sagged so that the top of the village pole was 7 inches above the lower wires of the power line. These wires were 4 feet distant on either side from the top of the village pole, and were uninsulated, high-tension wires, carrying a current of 33,000 volts. A street lamp was attached to the pole at a point 18 feet 9 inches above the ground. The village of Wadena owns an electrical distribution plant. It buys its electricity from the Minnesota Power & Light Company. One Ehrke was the general superintendent of the village light plant and system. Defendants Baehr, Kenyon, and Lovdahl, who were the owners of the Vagabond Tourist Cabins, employed Theisen to hang the neon sign on the pole. Kenyon had spoken to Ehrke some time prior to the time Theisen attempted to hang the sign and told him that he wanted to place the neon sign on this pole. Because Kenyon and his associates desired to use the pole, which was adjacent to the highway, on which to hang the sign at a position in which it would be plainly visible to the traveling public on the highway, Ehrke refused to remove the pole, although requested to do so by the Minnesota Power & Light Company, which advised him that the pole with the wires on it created a dangerous condition in the location in which it was. It appears that Ehrke had general charge of the electric light plant. He had the title of superintendent. Some 2 years previously, the owners of the tourist cabins installed a flood light on the north side of the pole without the consent of the village, but Ehrke, upon discovering the same and ascertaining that it was using electric current purchased from the city, permitted the light to remain.
That Ehrke permitted the installation of the neon sign as the superintendent of the electric light plant and system is supported by the evidence. He refused to remove the pole because Kenyon had spoken to him about using it for the purpose of installing this sign. Theisen went to see Ehrke on the day of the installation. Ehrke testified that he told Theisen the village council might object to the hanging of the sign, in which event the sign would have to come down, but that, if he did hang the sign, not to go above the village wires. Ehrke's testimony was contradicted by Theisen's brother, who testified that Ehrke told him that he had told Theisen to go ahead and hang the sign on the pole. A special interrogatory was submitted to the jury for a finding whether Ehrke had told Theisen that, if he did go on the pole, he should not go above the village fixtures, and this was answered in the negative. On August 1, 1934, Theisen undertook to erect the sign on the pole. He was assisted by one Uttermark, who worked at a near-by filling station. Uttermark helped Theisen raise the bracket from which the sign was to be suspended, up on the pole, but had to leave to service a car at the filling station before Theisen had finished nailing the sign bracket to the pole. There were no eyewitnesses to what transpired after Uttermarck left, but the physical facts existing immediately after the accident show that, after fastening the bracket by nails, Theisen had run a steel cable from the end of the bracket to the top of the pole, where the cable was wrapped around a lag bolt or wood screw which Theisen had driven into the top of the pole. This cable was longer than was required to bridge the distance from the end of the bracket to the top of the pole and, after it was attached to the lag screw, an unused portion of some 5 feet 5 inches remained. The cable could come in contact with the high-tension electric wires only if it was expended straight out horizontally north or south from the pole. If it was permitted to fall down or dangle or extend straight out east or west from the pole, there was no danger of such a contact. The last person to see Theisen prior to his fall from the pole was a 14 year old boy who, attracted by a crackling noise, turned and saw Theisen standing on the sign bracket, with what appeared to be a ball of fire near his head, and, as the boy looked, Theisen fell to the ground. He died the following day from burns caused by electric shock. It is reasonably certain that the current was conducted to Theisen by means of the steel cable which ran from the end of the sign bracket to the top of the pole. Defendant contends that the unused portion of the cable, a piece 5 feet 5 inches in length, came directly in contact with the high-tension wires which were 4 feet from the top of the pole on the north and south sides. Plaintiff claims that the contact could have been produced by a disruptive or ‘ brush’ discharge emanating from the high-tension wires when the cable was within from 2 1/2 to 3 inches or more from the wires, and that this is more probably what occurred, because evidence of actual contact with the high-tension wires, as indicated by copper deposits on the cable, was found at only one place.
1. Plaintiff claims that Theisen was upon the pole for the purpose of hanging the sign by defendant's permission given by its agent, Ehrke. Defendant asserts that Ehrke did not have authority to grant such permission and that he did not in fact grant it and that Theisen was a trespasser when he went upon the pole. The issue was submitted to the jury, which found in favor of plaintiff. The record fails to disclose that Ehrke's authority was ever definitely defined. The evidence does show that Ehrke exercised a general authority to act for the village. He testified that he was superintendent of the light system of the village and had held this office for 17 years; that he hired men and supervised them in the care and maintenance of the light system; that he purchased materials needed for the system; that he did not always receive permission from the council before he erected or changed the location of poles. The recorder of the village testified that the village council had never granted permission to any one to hang a sign on the pole. This does not tend to prove that Ehrke did not have authority as superintendent to grant permission to use the pole. Acts by a municipal officer in charge of a department are presumed to be in performance of official duty when the acts relate to matters confided to his control and supervision. The officer's general authority is sufficient prima facie to establish his authority to act with respect to the particular matter. Kobs v. City of Minneapolis, 22 Minn. 159. General authority to act for the village may be inferred from previous acts of such character and so continued as to justify the inference that the village had knowledge of them and would not have permitted the same if unauthorized. Thayer v. City of Boston, 19 Pick. (Mass.) 511, 517, 31 Am.Dec. 157; Lee v. Village of Sandy Hill, 40 N.Y. 442; Central Union Telephone Co. v. City of Conneaut (C.C.A.) 167 F. 274. The finding that Ehrke, as the authorized agent of the village, gave Theisen permission, is justified by the evidence. Theisen was lawfully upon the pole.
2. Negligence may be found in the failure of defendant to properly warn Theisen of the dangers to which he was exposed in hanging the sign. It is admitted that there were no guards or warning signs on or near the pole. Ehrke claims that he warned...
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