Welsch v. Charles Frusch Light & Power Co.

• Citation: 197 Iowa 1012,193 N.W. 427
• Decision Date: 11 May 1923
• Docket Number: No. 34347.,34347.
• Parties: WELSCH v. CHARLES FRUSCH LIGHT & POWER CO. ET AL.
• Court: United States State Supreme Court of Iowa

197 Iowa 1012

193 N.W. 427

WELSCH

v.CHARLES FRUSCH LIGHT & POWER CO. ET AL.

No. 34347.

Supreme Court of Iowa.

May 11, 1923.

Appeal from District Court, Buchanan County; E. B. Stiles, Judge.

Action at law to recover damages for the death of Florence Welsch, alleged to have lost her life through the negligence of the defendants. There was a directed verdict and judgment in favor of defendants, and plaintiff appeals. Reversed and remanded.R. L. Bordner, of Jesup, and McCoy & Beecher, of Waterloo, for appellant.

Pickett, Swisher & Farwell, of Waterloo, for appellees.

WEAVER, J.

On and before May 26, 1919, plaintiff and his wife, now deceased, were living upon their residence property in the town of Jesup, in which municipality the defendants or some of them owned and operated an electric light and power plant. Some months prior to said date defendant undertook to supply residence lights and motive power for a washing machine in the home of the plaintiff, and connection was made and wiring installed for that purpose. On the day named in May, 1919, Mrs. Welsch being apparently in good health, undertook to perform the family washing, and in so doing applied the power to the washing machine. She was alone, and there is no living witness who can speak with personal knowledge of all she did in and about this work. It was still early in the day when a neighbor, calling at the house, went down into the basement where the washing machine was kept and operated, and there discovered the dead body of Mrs. Welsch lying on the floor. The power had been applied, and the machine was running. Deceased was lying at full length on her back within two or three feet of the tub, between the machine and the stove, and within reach of the machine, on the one side, and the faucet for the water supply, on the other. Her body was still warm, but life seemed to have been extinct. There was one or more apparent burns on the finger and palm of her left hand, and a ring worn by her on that hand was discolored. The coroner holding the inquest, an undertaker having some experience in caring for bodies of persons dying of electric shock, described the alleged burn on the woman's hand and the mark on her ring, and expressed the opinion they were caused by electric contact. He also observed a black streak across her eyeball for which he could not account. It appears incidentally that the coroner's jury found the death to have resulted from electric shock, though we think it was not introduced in evidence. Several witnesses describe the appearance of the woman's hand as exhibiting burns. The plaintiff, as a witness, testified that a short time before the death of his wife he took hold of the socket through which the electric connection was made for using the machine and received a severe shock, causing him to fall and pull the socket from its place. This incident he reported to Frusch, who came and put in another socket. This alleged occurrence is denied by Frusch. Plaintiff and several other witnesses testify to investigations and experiments with the electric connection and wiring after the death of the intestate, and unite in saying that contact with the machine produced shocks, some of them of considerable severity. Defendant says that no change or repair of any kind was made in the lighting plant or equipment after the death of Mrs. Welsch, so that examinations and investigations made thereafter would reveal the true condition of the outfit and demonstrate the safety of the connection with plaintiff's premises on the date in question. He elsewhere admits that he did change or provide a new ground connection. He says:

“Two or three days after the Welsch accident we put an additional ground on the neutral wire. * * * At the time of the accident it was grounded, but I couldn't say how. It was not hitched onto the water pipe. I couldn't say it was permanently grounded. * * * I don't know in what condition that ground was in. * * * I put in this additional ground after this man Jones was down and tested out the plant. He was down after Mrs. Welsch's death, and as a result of what he told me I put in the additional ground. The neutral wire should be grounded.”

It would be of little profit for us to attempt to state in detail or at large the testimony of the witnesses, expert and nonexpert, but, so far as such recitation is necessary to an understanding of the vital issues, reference thereto will be made in a later paragraph of this opinion. The motion for a directed verdict, made after both parties had rested, assigns eight different reasons therefor. Stated in brief form, they are: (1) That there is not sufficient evidence to justify a finding of negligence on part of defendant; and (2) that it appears from the evidence as a matter of law that no electric current could have been received by the deceased in excess of 220 volts; and (3) even if the plaintiff's evidence, standing alone, could be said to make a prima facie case, “any presumption raised thereby has been overcome by the explanations and evidence of the defendant as introduced in this case.” In argument to this court the appellee relies upon two major propositions: First, that the evidence is entirely insufficient to sustain a finding that the deceased came to her death from an electric shock; and, second, that even if the fact of death by electric shock be found, there is no evidence from which it can properly be found chargeable to any negligence on part of defendants.

I. Counsel say, and frequently emphasize by repetition, that there is no evidence whatever that deceased came in contact with any electrical appliance, or that such contact, if inferred from circumstances, could have exposed her to a fatal stroke, that the agency causing the marks or burns upon her hands is not proved, but is purely a matter of inference, and that to find her death was caused by any such inferential contact is a mere inference drawn from an inference and does not rise to the dignity of evidence. Again it is argued that “death from an electric shock cannot be inferred where there is no direct evidence of contact without proof that the apparatus was charged with a current capable of producing death, and such current capable of producing death cannot be inferred in the absence of direct evidence that death resulted from electric shock.” This proposition is followed, however, by the admission that, where there is proof that “a current capable of producing death is on the wires in proximity to the place where a person is found dead, and circumstances are consistent with death thus caused, a jury may be permitted to infer that death was caused by an electric shock.” It is also conceded that, where there is direct evidence that the deceased in fact came in contact with the electric appliances and death resulted therefrom it is permissible for the jury to infer that the current with which the deceased came in contact was capable of producing death of a normal person. Even if it be admitted, which we do not, that the applicable rules of law are not thus too narrowly stated, it is exceedingly difficult for counsel to adjust their position in this case to accord therewith. To meet that difficulty they assert:

(1) That death “cannot be inferred because there is no proof of a current capable of producing death; (2) that the presence of a dangerous current cannot be inferred for that would be to build inference upon inference; and (3) even if it could be inferred, such inference is in conflict with the physical facts which are controlling.”

[1] But are these propositions sound? It is, of course, to be conceded that, if the literal truth of the appellee's showing be taken for granted, and it be assumed that at the time of the death of Mrs. Welsch there was no electric current on the wire leading to her washing machine in excess of the safe and normal voltage which defendants had undertaken to supply her, or if it be assumed, as counsel do, that it was an “impossibility that the apparatus and water pipes in the basement could have been charged with a dangerous electrical current,” then, of course, plaintiff has no case, and the judgment dismissing his claim must stand. But neither court nor jury is bound to accept as final and conclusive the defendants' showing of the perfection of their apparatus or of their scrupulous care and caution in its management, if the proved or admitted circumstances be such as will justify reasonable men in finding otherwise. True, the mere fact of the death of the deceased carries with it no presumption or inference that it was caused by an electric shock or is attributable to the act or neglect of the defendants, but, if the attendant circumstances be such as to justify a fair-minded jury in tracing the death to such cause, the testimony of the defendants, no matter how positive or direct, does no more than to raise an issue of fact. The application of this general rule to the case of an alleged death by electric shock has been often recognized and is well expressed in Curtis on the Law of Electricity, p. 933, cited by the appellee, as follows:

“ Cause of death. Difficulty is sometimes experienced in producing sufficient evidence to justify a judge or jury in finding that an electric shock is the cause of the death of a person. The electric current is invisible, the indications of shock to the body may not be satisfactory, and the only witness who can tell how he received his injury may be dead. The fact that electricity was the cause of death may, like most other facts, be proved by circumstantial evidence, if there is no direct primary evidence procurable. In civil cases a litigant is not required to prove his right to recover beyond a reasonable doubt. All that is required is that evidence be produced which indicates with reasonable probability the truth of the party's contention. Where a person is found dead in proximity to an electrical appliance, contact with...