Walter v. Baltimore Elec. Co.

• Decision Date: 13 January 1909
• Citation: 71 A. 953,109 Md. 513
• Parties: WALTER v. BALTIMORE ELECTRIC CO. et al.
• Court: Maryland Court of Appeals

71 A. 953

109 Md. 513

WALTER v. BALTIMORE ELECTRIC CO. et al.

Court of Appeals of Maryland

January 13, 1909

Appeal from Superior Court of Baltimore City; Henry D. Harlan Judge.

Action by Harry B. Walter, infant, by next friend, against the Baltimore Electric Company and another. From a judgment for defendants, plaintiff appeals. Reversed and remanded for new trial.

Charles F. Stern and Thomas G. Hayes, for appellant.

Vernon Cook, for appellees.

SCHMUCKER J.

The question presented by this appeal is a narrow one. It is whether the fact that a wire of an electric lighting company strung over the public street of a city fell upon and injured a person passing along the street of itself affords sufficient prima facie proof of negligence on the part of the company to cast upon it the burden of overcoming that presumption. There is evidence in the record which, for the purpose of this inquiry, must be taken to be true that, as the equitable plaintiff, a boy eight years old, was passing along Harford avenue, a public street of Baltimore city, he swung himself around a pole standing in the pavement, when he came in contact with a hanging wire charged with electricity and badly burned his head and his hand. The evidence does not show the existence of any sudden or unforeseen cause for the falling of the wire, nor show with certainty whether it fell before or at the time of its coming in contact with the boy. He brought this suit for damages for his injury against the appellee and two other companies, all of whom were declared against as owners of the wire, but the appellee admitted at the trial below that it was the owner of and controlled the wire, and the case was not pushed against the other defendants. At the trial in the court below the case was taken from the jury at the close of the plaintiff's evidence, by the granting of the defendant's prayer, for want of legally sufficient evidence to warrant a recovery. From the judgment for the defendant resulting from that ruling, the plaintiff appealed.

The recent wide-spread adoption of overhead wires upon public streets for the transmission of high tension electric currents for supplying light and power has been followed by numerous injuries to persons who have come in contact with broken and fallen wires. The series of damage suits flowing from these accidents have called for frequent consideration by the courts of the reciprocal rights and duties of the public and the owners of those dangerous instrumentalities. The courts agree that outside of any contractual relation the very nature of the business of transmitting such currents along highways imposes upon those engaged in it the legal duty to exercise, for the protection of all persons lawfully using the highways, the high degree of care commensurate with the danger incident to the proximity thereto of the wires charged with their invisible but deadly power. W. U. Tel Co. v. State, Use Nelson, 82 Md. 293, 33 A. 763, 31 L R. A. 572, 51 Am. St. Rep. 464; Brown v. Edison Electric Co., 90 Md. 400, 45 A. 182, 46 L. R. A. 745, 78 Am. St. Rep. 442; Newark Elec. Light & P. Co. v. Ruddy, 62 N. J. Law, 505, 41 A. 712, 57 L. R. A. 624; Sub. Elec. Ry. Co. v. Nugent, 58 N. J. Law, 658, 34 A. 1069, 32 L. R. A. 700; Postal Tel. Co. v. Jones, 133 Ala. 217, 32 So. 500; Mangan's Adm'r v. Louisville Elec. L. Co., 122 Ky. 476, 91 S.W. 703, 6 L. R. A. (N. S.) 459; Wittleder v. Cit. Elec. & S. Co., 50 A.D. 478, 64 N.Y.S. 114. It has been held in different cases that electric companies are not insurers of the public using the streets over which their wires are strung on poles, and are therefore not liable for all injuries resulting from contact with their wires, irrespective of the circumstances under which they occur. What they are liable for is the exercise of that degree of care which the law imposes upon them in view of the dangerous character of their wires and the rights of the public in the highways over which they are suspended. In Nelson's Case, supra, we said, in defining the measure of responsibility of the defendant companies to the plaintiff in the use by him of a highway over which their wires were strung: "The privileges so granted [to the defendant companies] thus to encumber the public highway with appliances so likely to become dangerous to the public safety unless properly employed and controlled imposed upon them, and each of them, the duty of so managing their affairs as not to injure persons lawfully on the streets. They owed it to Nelson that his lawful use of the street should be substantially as safe as it was before the telegraph and railway plants had so occupied it. It was their plain duty, not only to properly erect their...