Thomas v. Electrical Company.

Decision Date12 December 1903
Citation54 W.Va. 395
PartiesThomas v. Electrical Company.
CourtWest Virginia Supreme Court

Pleading Declaration.

It is only necessary to state facts, and never is it necessary to aver matter of law in declaration. (Hogg's Plead. & Forms, 59). (p. 398).


Surplusage in pleading does not vitiate. (Idem), (p. 398).

Negligence Question for Jury.

Where there is no controversy as to the facts or inferences that may be fairly drawn from them, the question of negligence is one of law for the Court. Where such is not the case, the question is for the jury. (p. 398).

Electric Companies Negligence.

It. is the duty of electric companies to use very great care to keep the insulation of its dangerous wires perfect at places where people have a right to go for work, for business or for pleasure, (p. 399).

Electric Company Negligence.

When injury to a person comes from contact with a live electric wire from bad insulation at a place where there ought to be good, safe insulation for safety to persons, it is a case of negligence on the part of the electrical corporation rendering it prima fade liable, (pp. 399, 400).

6. Negligence.

If one take hold of an electric wire at a place where it ought to be safely insulated for safely to persons, and is injured by reason of defective insulation, he not knowing its defect, he is not from so doing guilty of contributory negligence forbidding recovery of damages, (p. 401).

7. Electric Company Negligence.

One coming in contact with a live electric wire in discharge of duty will not, on account of so coming in contact, be guilty of contributory neglegence, if* it was the duty of the corporation to properly insulate the wire at the place of injury, and it has neglected to do so, and the person knows not the defect of insulation, (p. 403).

8. Electric wire.

In places where electric wires should be insulated for safety to the persons, one may assume that they are so insulated, if he know not to the contrary, (p. 403).

9. Electric Company.

A corporation or person operating a plant for electric lighting must anticipate injury as likely to happen to persons from contact with its wires by reason of defective insulation at places where the law requires such insulation, (p. 403).

10. Verdict.

The verdict of a jury in an action for death from wrongful act can not be set aside for excessivencss in an amount under $10,000, their assessment being final, unless the verdict be the result of passion, prejudice, partiality or corruption on the part of the jury. (p. 405).

11. W ftness Testimony Error.

The refusal of a court to permit a witness to answer a question will not be considered in the appellate court when it is not stated or shown what it was expected the answer would be, unless the question very clearly imports what such answer must be. (p. 406).

Error to Circuit Court, Ohio County.

Action by W. E. Thomas, administrator, against the Wheeling Electrical Company. Judgment for plaintiff. Defendant brings error.


Caldwell & Caldwell and J. A. Howard, for plaintiff in error.

J. J. CoNff, for defendant in error.

Brannon, Judge:

On the front of the Grand Opera House on the corner of Market and Twelfth streets, in the city of Wheeling, is a balcony eight feet long, three feet wide, thirty inches high, with a rail eight inches wide. Out from the building at the street curb stood a pole, and from it two wires conveying electricity for light belonging to the Wheeling Electrical Company extended by a sharp angle to a bracket on the north wall of the opera house. These wires passed close to the rail of the balcony, eighteen or twenty inches from it, one six inches above the other. The balcony is used for people to go out upon through a window of the opera house opening upon it. There had been a converter or transformer on this balcony from which two wires ran to the main wires just mentioned; but the transformer was removed and the two wires connecting it with the wires outside the balcony were cut away at the point of their union with the two wires outside the balcony, and in doing so the defendant left the ends of the wires stick out, and did not properly wrap them, and did not cover them with tape, and the old insulating material did not cover the point, and was worn and dangerous. It was clearly shown that the wires in this condition Were extremely dangerous; this was not a disputed fact, the officers of the company stating on the stand that they were so dangerous that contact with them would kill. They remained in such condition a long time, without inspection. An opera company which had leased the building for a term had been performing in it, and had tacked advertising banners on the balcony, and when about to close its performances there employed Earl J. Thomas, twenty-one years of age, five feet eleven inches high, to gather;hese banners on Market treet, and he went out upon this balcony to untack from the balcony some banners which had been tacked upon it, one of them on the north end of the balcony by which the wires ran, the banner being tacked on the top rail and on the lower part of the balcony. While engaged in this work, between seven and eight o'clock of the night of 2d. November, ho came in contact with one of the electric wires. He was seen grasping the wire with his left hand, his right hand on the left wrist, leaning against the corner of the brick wall at the junction of balcony and wall, apparently fastened or transfixed by the shock, and when jerked away by a person who went to his rescue fell lifeless to the balcony floor. He was apparently dead while standing against the wall with the wire in his hand. Whether he took hold of the wire to steady himself when intending to reach down to loosen the lower corner of the banner, or how or why he took hold of it, does not appear. He was simply seen grasping it, fastened to it. The upper corner of the banner had been loosed by him. His administrator brought an action against the company to recover damages for his death, and by the verdict of a jury recovered $7,500, on which judgement was rendered. The company brings the case here, assigning forty-three errors.

Complaint is made that the second count states the duty resting on the defendant as too high and stringent. That is mere allegation of law, and immaterial. Pleadings should state facts not law. Facts only arc necessary to be stated, not arguments and influences. Where a decelaration, after stating facts, alleges that it thereupon became the duty, &c the allegation is to be understood as a mere legal liability supposed to result from the facts, and as an assertion that the defendant became bound in law to a legal liability, and not as a substantive allegation. The allegation of duty is superfluous where the facts show a legal liability, and is useless where they do not. 1 Chitty, Plead. 236; 2 Id. 171). It is not claimed that the facts stated in this count do not raise a duty. The matter complained of is surplusage, ft would not vary or prescribe the proof. "It is only necessary to state facts, and never is it necessary to aver matters of law in a declaration."

"Surplusage never vitiates a declaration, and is treated as if it had never been inserted therein." Hogg's Plead. & Forms, 59; Andrews' Stephen's Plead. 411.

The defendant complains of the following instructions given for the plaintiff: "The court instructs the jury that it was the duty of the defendant to not only protect any portion or portions of its wires in close proximity to the north end of the balcony mentioned in evidence that may be exposed, by proper insulation, so that persons coming in contact therewith in the per- formance of their work would not he injured, but it was also the duty of the defendant, by proper inspection from time to time, to see that said insulation was kept in a proper condition."

It is said that this instruction takes for granted that the wire was exposed and not properly insulated. I do not think so. It simply states a legal proposition, and does not intimate an opinion on the facts. Other instructions told the jury that it must pass on those facts on the evidence.

It is further argued that the instruction misleads. It is claimed that it should have incorporated the principles of instruction 12 in Snyder v. Wheeling Electrical Co. 43 W. Va. 072, that it should have submitted the question whether the defendant was bound to anticipate injury to any one from the position of the wire, or that persons would come in contact with it in performing any work. As we said in the Snyder case, an electrical company, using a dangerous power, is required to use very great care and diligence to avoid danger. It is bound to anticipate danger and properly insulate its wires, and inspect and keep them so, at certain places, but not everywhere. It is bound to expect certain accidents in certain ways or from certain causes, but not all accidents from every cause. Whether a place is such, under the evidence, as to require insulation is generally a question for the jury. Whether, if such a place, the accident is such that might have been anticipated, is a question of fact for the jury. But sometimes negligence is a question of law for the court. "Where there is no controversy in regard to the facts or inferences that may be fairly drawn from them, the question of negligence is one of law for the court." Woolwinc v. C. & O. R. Co., 30 W. Va. 329; Johnson v. Railroad Co, 25 Id. 570; Ketlerman v. Railroad Co., 48 Id. 606. It is undisputed that the balcony was for persons to go upon, and that they did go upon it, and that the wire was distant only twenty inches from its railing and was thus in close proximity to the balcony.

"A company maintaining electrical wires, aver which a high voltage of electricity is conveyed, rendering them highly dangerous to others, is under the duty of using the necessary care and prudence at places where others may have the...

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