Workman v. Lincoln Telephone & Telegraph Co.

• Decision Date: 16 February 1918
• Docket Number: 19775
• Parties: NINA P. WORKMAN, ADMINISTRATRIX, APPELLEE, v. LINCOLN TELEPHONE & TELEGRAPH COMPANY, APPELLANT
• Court: Nebraska Supreme Court

166 N.W. 550

102 Neb. 191

NINA P. WORKMAN, ADMINISTRATRIX, APPELLEE, v. LINCOLN TELEPHONE & TELEGRAPH COMPANY, APPELLANT

No. 19775

Supreme Court of Nebraska

February 16, 1918

APPEAL from the district court for Lancaster county: P. JAMES COSGRAVE, JUDGE. Affirmed.

AFFIRMED.

F. M Hall, H. W. Baird and F. D. Williams, for appellant.

Berge & McCarty, contra.

ROSE J. SEDGWICK and CORNISH, JJ., not sitting. HAMER, J dissenting.

OPINION

ROSE, J.

This is an action to recover damages in the sum of $ 30,000 for negligence resulting in the death of George B. Workman who was killed by an electric current at the intersection of Seventh and J streets, Lincoln Nebraska, October 7, 1913. The electricity was conveyed to him by a wire belonging to defendant's telephone system. The wire had been suspended on poles along J street, where it did not carry a dangerous current; but it broke, and in falling came in contact with a live wire connected with the lighting plant of the city of Lincoln. One end of the broken wire, with several feet on the ground in the street, was thus charged from an electric light wire carrying 4,400 volts. After the telephone wire on the ground had been emitting sparks from 9 o'clock in the morning, or earlier, until 11 o'clock at night, Workman seized the end of it with pliers in his right hand, while holding a lantern in his left. The result was fatal. Plaintiff, his widow, is administratrix of his estate. In her petition she charged defendant with negligence in using a decayed wire; in failing to use insulation and guards as a protection from heavily charged wires beneath; in neglecting to make proper and timely inspection; in leaving the live wire on the ground in the public street for more than twelve hours. The negligence charged by plaintiff was denied in the answer, which contained also the plea that Workman, who had not been employed or directed by defendant, but prompted alone by his own will, went to the intersection of Seventh and J streets and voluntarily, unnecessarily and negligently attempted to handle the live wire, knowing the danger, assuming the risk, and losing his life in consequence. From a judgment on a verdict in favor of plaintiff for $ 6,000, defendant has appealed.

The evidence is sufficient to sustain a finding that the broken wire carrying the deadly current was on the ground in the street as the result of defendant's negligence. The record, therefore, presents this question: Did Workman's conduct prevent plaintiff from recovering damages? The position of defendant is indicated by the following excerpt from the brief:

"The evidence demonstrates that Workman's picking up the telephone wire, which was lying on the ground sparking and moving about with a manifestly heavy current of electricity, by the use of small pliers, inadequately insulated, when there was no immediate need for such action, which was entirely voluntary and not within his employment, but as a simple volunteer, was such negligence and assumption of risk of the manifest danger involved as constitutes the proximate and only cause of his death and defeats recovery."

In this connection attention is directed by defendant to evidence tending to prove the following facts: Workman was not employed or directed by defendant to handle the broken telephone wire. He had been in the employ of the Lincoln Traction Company as a repairer of electric street cars. While thus engaged he left the repair shop at night without his employer's permission, went two or three blocks to the place where the telephone wire had fallen, and voluntarily attempted to handle it. The task was not a duty of his employment. The pliers used were too small and not sufficiently insulated to protect him. Neither the broken wire nor the electric light wire belonged to him or to his employer. The sparks gave their own warning. Workman was told by a bystander not to pick up the telephone wire. The two men were the only persons near the place of danger at the time. The police department of Lincoln and the proper experts in handling heavily charged wires had been notified of the trouble. On evidence of these facts counsel assert that there should have been a peremptory instruction for defendant.

Formidable as the defense appears in the light of able advocacy, a different aspect of the case requires consideration. The attribute of human nature which prompts a man, though acting voluntarily, to remove from a public street a menace to the life or to the property of others is not beyond the protection of the law. The subtle agency which instantly destroyed Workman's life in a public street was wrongfully set in motion there by defendant.

Considering on one side this negligence and on the other the conduct of Workman in voluntarily attempting to remove the menace, does the law recognize no alternative but a nonsuit? The answer to this question requires consideration of evidence tending to prove the following facts: The Lincoln Traction Company, the employer of Workman, had a building at Seventh and J streets. Other buildings, including the office and the shops where Workman repaired electric street cars, were less than three blocks away. His employer, at the intersection mentioned, had electric wires beneath those of defendant. Learning that a live wire was down, Workman took a lantern and went to the scene of the trouble. When he arrived a barber was voluntarily acting for the moment as watchman. An uninsulated iron wire, an eighth of an inch in diameter perhaps, with several feet on the ground, was hanging in the street from an electric light wire. As indicated by sparks, the broken wire was not perfectly grounded. It did not receive the entire voltage of the electric light wire--a current sufficient to melt the small telephone wire. These were the conditions when Workman arrived. The barber, who was the only eye-witness, told Workman not to pick up the wire, but the latter showed a pair of pliers with the handles wrapped in insulating tape, said they were safe, that he knew how to handle the wire and that he would take it out of the way. For more than six years he had been repairing electric motors and applying currents of 500 volts. He was not without experience in handling wires carrying such a voltage. With his pliers he seized the wire, walked backward and pulled it after him several feet without mishap. He did not fall until the wire touched his lantern. There is proof tending to show the facts thus narrated.

Workman's conduct was consistent with his duties to his employer. He was not an idle or curious meddler or a trespasser. He had a right to be in the street. He did not know that others would promptly remove the dangling wire. The authority to remove from a public thoroughfare wrongful obstructions and other dangers is not limited to public officers or to representatives of the wrongdoers. In public places a volunteer, prompted by a purpose to protect the lives or the property of others, may perform reasonable acts necessary...