Valparaiso Lighting Co. v. Tyler
| Decision Date | 11 December 1911 |
| Docket Number | 21,965 |
| Citation | 96 N.E. 768,177 Ind. 278 |
| Parties | Valparaiso Lighting Company v. Tyler, Administratrix |
| Court | Indiana Supreme Court |
Rehearing Denied March 29, 1912.
From Porter Circuit Court; Cornelius R. Collins, Special Judge.
Action by Mary V. Tyler as administratrix of the estate of Harry B Tyler, deceased, against the Valparaiso Lighting Company. From a judgment for plaintiff, the defendant appeals. (Transferred from the Appellate Court under § 1405 Burns 1908, Acts 1901 p. 590.)
Affirmed.
Bomberger, Sawyer & Curtis and Sidney Stein, for appellant.
H. H. Loring, for appellee.
Appellee sued appellant for damages for personal injuries to her decedent, resulting in his death. The complaint was in five paragraphs. Appellant demurred to each paragraph thereof, which demurrer was overruled. The trial resulted in a verdict and judgment for plaintiff for $ 3,000.
It is claimed that the court erred in overruling the demurrer. The complaint is verbose and unnecessarily long. The first paragraph alone covers ten typewritten pages; but, disregarding the great mass of redundant matter, this paragraph does allege that on and prior to the day of the accident--April 4, 1907--defendant was operating an electric light plant in Valparaiso, which plant, among other things, consisted of wires, strung on poles twenty-five feet high, through which wires it constantly transmitted deadly currents of electricity; that one of the poles stood at a street crossing; that in the street and near the pole a new pole had been set, and a wire changed from the old pole to the new pole; that the old pole had attached thereto, at the top thereof, a guy-wire thirty-five feet long, the other end of which formerly had been attached to an anchor, but was then lying loose on the ground in the street. It is further alleged that the electric light wire on said pole formerly had been insulated, but at that time the insulation was rotten, and had fallen off the portion of the wire in the vicinity of the pole, and by reason thereof there was nothing to resist the escape of the electric current from the wire at that point, and that condition had existed for six months. It is also alleged that decedent's next of kin were his mother and brother, who were damaged in the sum of $ 10,000.
The old pole was set in the ground five feet deep. On the day of the accident, defendant, by its servants, was engaged in removing the old pole, by digging around it, and lifting it out of the ground. While so engaged, defendant negligently permitted the deadly current to continue passing through the light wire on the new pole, which was close to the top of the old one. Plaintiff's decedent, at the time, was an employe of one Youngs, who had been hired by defendant to haul away the old pole when taken out of the ground. Decedent arrived at the place while the workmen were digging, and was in the street waiting to haul the pole away for his employer as soon as it was taken out of the ground. While so waiting, he took hold of the end of the guy-wire lying in the street, and, while holding it, defendant's servants, while working with the pole, negligently caused the top thereof to come in contact with the defectively insulated, charged wire, in such manner as to let the current escape therefrom and be transmitted through the guy-wire to the body of decedent, thereby causing his instantaneous death. It is alleged that decedent was free from contributory negligence, and was ignorant of the dangers averred, and that defendant had full knowledge of all the facts averred; that, at the time of his death, decedent was a minor, unmarried, and lived with his mother and helped to support her.
Counsel for appellant assert that the complaint is insufficient, because the death of decedent is averred by way of recital only. The language of the complaint is that defendant "negligently pushed the top of said * * * pole against one of said * * * wires * * * in such manner as to cause said * * * deadly current * * * to escape therefrom and be transmitted to said guy-wire and through the body of the said * * * Tyler, thereby causing the instantaneous death of * * * the said * * * Tyler."
Without commending the pleading, we think it was sufficient, as against the above objection to repel a demurrer. Agar v. State (1911), 176 Ind. 234, 94 N.E. 819, and cases cited.
It is also contended that the complaint is insufficient because it does not aver that the agents of defendant knew decedent had hold of the guy-wire before the injury, and, further, because the company was not bound to maintain its wires so that a person, not a traveler on the streets, who meddled therewith, would not be injured.
The demurrer admits decedent's freedom from contributory negligence, as alleged in the complaint; it also admits that decedent was lawfully in the street when injured. The proximate cause of the injury was the escape of the current from the light wire.
In Indianapolis Light, etc., Co. v. Dolby (1911), 47 Ind.App. 406, 92 N.E. 739, a current of electricity at a voltage of 2,250, was permitted to escape from the light company's wires to the wires of a telephone company in the vicinity, and the current was thereby transmitted to a police patrol box. The injured party was a policeman, who, on attempting to open the charged patrol box, received an electric shock, causing his death. The Appellate Court, in its opinion, in discussing the duty of those conveying electricity, at a high voltage, over wires in highways, to prevent the escape of the current from the wires, said: In our opinion the first paragraph of complaint here stated a cause of action.
The instructions given by the court to the jury are set out in appellant's brief. Appellant claims the first instruction is erroneous, because it assumes that the jury knew what the issues were, when the court had not advised them thereof. This position is untenable. If the instruction given was not full enough properly to advise the jury of the issues, it was appellant's duty to request one which supplied the deficiency.
The fourteenth instruction given was as follows: "It was the duty of the defendant company to so keep its electric wires overhead in Valparaiso street through which it transmitted a current of electricity, from coming in contact with persons rightfully using the streets of said city."
It is claimed this instruction was not applicable, because there is no...
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