Zentner v. Oshkosh Gaslight Co.

• Decision Date: 14 November 1905
• Citation: 126 Wis. 196,105 N.W. 911
• Parties: ZENTNER v. OSHKOSH GASLIGHT CO.
• Court: Wisconsin Supreme Court

126 Wis. 196

105 N.W. 911

ZENTNER

v.OSHKOSH GASLIGHT CO.

Supreme Court of Wisconsin.

Nov. 14, 1905.

Appeal from Circuit Court, Winnebago County; Geo. W. Burnell, Judge.

Action by Peter J. Zentner, as administrator of the estate of Louis Zentner, deceased, against the Oshkosh Gaslight Company. From a judgment for defendant, plaintiff appeals. Reversed.

This action was brought by Peter Zentner, as administrator, to recover damages for the death of one Louis Zentner, alleged to have been killed through the negligence of the defendant while in its employ as a lineman on the 13th day of February, 1904. The answer denies the material allegations of the complaint, and alleges contributory negligence on the part of plaintiff's decedent. After the introduction of plaintiff's evidence the court, on motion of defendant, granted a nonsuit, and judgment was entered thereon, from which this appeal was taken. There is testimony tending to show: That plaintiff's decedent was, at the time of his death, 19 years of age, and had worked as a lineman for defendant six or seven months. That before this he had worked for a telephone company and also a gaslight company, and had never done any high potential work before he worked for defendant. His brother testified that deceased never had any schooling or special instruction in electrical work that he knew of, and that he never had been away from home where that branch of electrical engineering of any kind was taught. That about February 10, 1904, there was a severe fire in the city of Oshkosh. That a line of wires and poles of defendant in the rear of the burned buildings was badly damaged by such fire. That one of these poles, the one upon which decedent was killed, was badly scorched and burned; the upper end being entirely destroyed and the attachments badly damaged. That the pole, wires, and cross-arms in question during the fire became coated with ice, occasioned by water thrown by the fire department, and this condition continued until the time of the accident. The wires on the pole were three secondary wires belonging to defendant, and next above these four primary wires supported by cross-arms, two on each side of the pole. Prior to the fire there had been above these wires of defendant two cross-arms supporting electric wires of another company, and above these other arms supporting telephone and fire alarm wires. All wires, except those of defendant, were removed the day after the fire That the insulation was burned off the wires for a distance of 50 feet on each side of the pole in question, and the pole was charred down to within six or eight feet of the ground, and from there it was wrapped with wire. This pole was hollow at the butt, running up 15 or 18 feet. That this hollow and rotten condition would tend to make it a better conductor when wet. That a pole is a good insulation to work on wires if dry; but, if wet, there is no reason why it would not carry the current from the wire to the body, into the pole and to the ground. The body would form a connection between the two wires, if touched, so as to pass the current from one to the other. On February 13, 1904, decedent went to work on the morning of the accident under the direction of defendant, to make the repairs in the vicinity of this pole, and returned about 1 o'clock in the afternoon and went to work on the pole in question, and was killed about an hour later. He had placed one or two new cross-arms on the north side of the pole, one in the primary wires, which carried 2,200 volts, and which is a dangerous voltage, leaving two old cross-arms on the opposite side. While at work, and standing with one foot on the secondary cross-arm, the other in a hook or climber struck into the pole and fastened to his boot, with a safety belt around his body and the pole, bringing the primary wires even with his hips he was discovered burning on the wires; death following immediately. The body was hanging over towards the two wires on the west side of the pole, his right hand or arm lying on the insulator of the outside wire, burned off at the wrist, where it touched the wire, and the left hand appeared to have grasped the wire next to the pole, and was partially burned off. The wires on the west side of the pole were on the cross-arm. Those nearest the pole had been untied from the insulator and had dropped down upon the cross-arm. The outside wire was still tied to the insulator. That the customary method in making repairs is to shut off the current, and that it is not customary for companies to make such repairs with the current on.

Marshall and Siebecker, JJ., dissenting.

Phillips & Hicks, for appellant.

Vilas, Vilas & Freeman, for respondent.

KERWIN, J. (after stating the facts).

It is clear that the employment in which the plaintiff's intestate was engaged was one involving possible contact with a highly dangerous agency. He knew this, and it was his duty in such employment to exercise such degree of care as was reasonably commensurate with the usual and ordinary dangers to be expected under the circumstances; that is, such care and prudence as ordinarily prudent and careful persons engaged in such employment usually exercise under the same or similar...