Washington & O.D. Ry. Co. v. Dulany

• Decision Date: 03 April 1923
• Docket Number: 3768.
• Parties: WASHINGTON & O.D. RY. CO. v. DULANY.
• Court: U.S. Court of Appeals — District of Columbia Circuit

288 F. 421

WASHINGTON & O.D. RY. CO. v. DULANY.

No. 3768.

United States Court of Appeals, District of Columbia.

April 3, 1923

Submitted October 13, 1922.

Appeal from the Supreme Court of the District of Columbia.

Evidence that a lineman employed by defendant, who was in apparent good health, had climbed a ladder to make repairs to a trolley wire leaving a fellow servant below to hold off from the ground the coil of wire which the lineman was to attach to the trolley wire, that a moment later the lineman was seen to fall from the ladder, and the coil of wire was lying on the ground, in contact with a rail, and it was subsequently observed one end of it had been attached to the trolley wire held sufficient to warrant the jury in inferring that the fall which resulted in the lineman's death was caused by an electric shock, resulting from the fellow employe's negligence in dropping the coil of wire.

Wilton J. Lambert and Rudolph H. Yeatman, both of Washington, D.C for appellant.

Thomas Ruffin, of Washington, D.C., for appellee.

Before SMYTH, Chief Justice, ROBB, Associate Justice, and SMITH Judge of the United States Court of Customs Appeals.

SMITH Acting Associate Justice.

Edwin Delany Bland and C. A. Trammell were employed as linemen by the Washington & Old Dominion Railway Company. On the 19th of June, 1916, Bland and his assistant, Trammell, were called upon to repair an overhead trolley wire, which was out of order, and which was established by the company as a conductor of electricity to furnish the motor power for its transportation service.

It appeared from the evidence submitted by plaintiff's intestate that to make the needed repairs Bland mounted a ladder reaching from the ground to the trolley wire, a height of about 22 feet, and carried with him one end of a coil of so-called guy or messenger wire; that the rest of the coil was left in the hands of his assistant, Trammell; that as long as Trammell stood on dry wood, with the coil in his hand, it was safe for Bland to go up the ladder and to attach his end of the coil of messenger wire to the trolley wire, but that, if the coil was not kept free of the ground, there was danger of establishing a circuit of electricity and of communicating an electrical shock to Bland, when his end of the messenger wire came in contact with the trolley wire, which was to be repaired, and which carried a voltage of 650 volts.

William H. Heck, a witness for plaintiff's intestate, testified that, when Bland mounted the ladder with the end of the messenger wire in his hand, Trammell was standing on the cross-ties at the foot of the ladder with the coil of messenger wire in his hand; that, just as Bland got to the top of the ladder, Heck turned his head away from the ladder towards the woods, and that on facing the ladder again he saw Bland falling; that Trammell was then standing near the ladder, and that the coil of wire was then lying on the ground close to the foot of the ladder. As the result of the fall Bland's skull was broken, and within 12 hours after the accident he died from the injuries received.

Robert E. Coleman, a witness for plaintiff's intestate, said that, after hearing Trammell telephone for a doctor, he went to the scene of the accident, and there saw Bland lying near the tracks; that he then saw, hanging from the trolley wire, a wire which ran to a coil of wire lying on the ground.

Paul W. Proctor testified that he met Trammell, who was on his way to telephone for a doctor, and that Trammell told him that a lineman had been injured while he was splicing a wire to the 'overhead trolley,' which splicing wire came in contract with the wheel rail.

George H. Markham, another lineman in the employ of the appellant company, called as a witness for plaintiff, stated that line cars, equipped with a derrick carrying a wooden platform, are used in making repairs to the wires of the trolley system, and that those doing the work stand on the platform. The following questions were propounded to the witness:

'Q. Mr. Markham, did the Washington & Old Dominion Railway Company have any line cars in 1916? ' To that question the defendant objected, and, the court having overruled the objection, the witness answered: 'They had no line cars built for line work.'

'Q. Were line cars generally in use by the electric railways for the purpose of making repairs in 1916? ' To which question counsel for the defendant objected on the ground that it was not relevant to the issue. The objection was overruled, whereupon the witness answered: 'All that I know of had them--not all, though, but a majority of companies had line cars.'

Dr. James A. Gannon, surgeon for the defendant company, testified in behalf of the plaintiff's intestate that he attended Bland in the Georgetown Hospital, and that Bland was suffering from a fracture at the base of his skull, from which injury he died within about 12 hours after receiving it. Bland, shortly after his admission to the hospital and while he was conscious, made a statement to the witness, which was reported by him to the company. The witness said that he had no copy of the statement, and that he had never seen the report after sending it to the company.

On the part of the defendant testimony was introduced to the effect that Bland and Trammell were detailed to repair the trolley wire of the defendant company at Soap Stone siding; that Bland carried with him a coil of wire to make the repairs; that a ladder was raised to the trolley wire, and that a coil of wire carried by Bland was laid by him on the cross-ties of the track and against the iron rail; that Bland put one end of the coil of wire around his wrist and started up the ladder; that Bland and Trammell both knew that, if the wire carried by Bland on his wrist came in contact with the trolley wire, it would surely cause a shock, inasmuch as the coil of which it was a part was lying on the ground in contact with the rail; that Bland told Trammell to hold the ladder steady, but did not tell him to take the wire off the rail, or off the ground; that Trammell did not permit the ladder to move in any way, so as to cause Bland to fall; that the first thing that attracted Trammell's attention to Bland was when Bland uttered a grunt, as if something had hit him; that, when Trammell heard Bland grunt, Bland had arrived at the top of the ladder, and that his feet were still on the round of the ladder. After the introduction of evidence had been completed the defendant requested the court to instruct the jury as follows:

Instruction 1: 'The jury are instructed as matter of law that, upon all of the pleadings and evidence in this case, their verdict should be for the defendant.'

Instruction 1-A: 'The jury are further instructed as matter of law that there is no evidence in this case tending to prove that witness Trammell was guilty of negligence, as alleged in the first count of the declaration herein, and therefore their verdict should be for the defendant upon the first count of the said declaration.'

Appellant seeks a reversal on the ground, first, that the evidence was insufficient to show that the death of Bland was caused by an electric shock, or by or through the negligence of his fellow servant, Trammell; second, that the court erred in permitting the witness Markham to testify, over the objection of the defendant, that line cars equipped with a safety platform were used by the majority of electric railway companies in the making of repairs to trolley and current-carrying wires third, that the court erred in allowing the plaintiff to either impeach or attempt to impeach Trammell's testimony as to collateral matters brought out on cross-examination and not relevant to the issues raised by the pleadings; fourth, that in making statements not warranted by the evidence, and designed to excite the passions of the jury against the defendant, counsel for the plaintiff misconducted himself during his closing argument, and that therefore the court erred in denying defendant's motion to...