Denver Consolidated Electric Co. v. Lawrence

31 Colo. 301

• Court: Supreme Court of Colorado
• Decided: April 15, 1903
• Docket: No. 4261
• Status: Published

Opinion

Mr. Justice Steele

delivered the opinion of the court.

The complaint alleges that the defendant, at the time the plaintiff received the injuries, was the owner of and in the exclusive operation and management of an electric light plant in the city of Denver for the generation and distribution of electricity for light among and to the general public and residents of the city of Denver, and was engaged in'the business of selling and supplying electricity to the general public ; that the defendant was furnishing electricity for lighting purposes to the father of the plaintiff, at his residence in the city of Denver; that the plaintiff was residing with his father and was ■ a member of the family at the time he received the injuries; that it was and is the duty of the defendant to at all times have and maintain a sound and safe plant, machinery, appliances, etc., and to inspect and examine the same from time to time, and to keep the same in good and safe condition so that its patrons might safely use electricity; that the defendant did not discharge its said duties, so that, while the plaintiff was attempting to turn on the electric light in one of the rooms of his father’s residence, without any carelessness or negligence on his part, he received a severe and terrific charge of electricity. We are of opinion that the complaint states a cause of action. It was held by this court in Wilson et al. v. D. & S. P. R. R., 7 Colo. 101, that “when negligence has been alleged in general terms, while the pleading is not for this cause obnoxious to demurrer, yet if the plaintiff possesses more specific information, he may be required, on motion, to make his complaint more definite and certain. ’ ’

The demurrer admits the facts well pleaded. The fact stated in the complaint, in substance, are that the defendant is in the exclusive control of a plant for the generation and distribution of electricity, and that it was supplying for pay the residence where plaintiff resided electricity from its plant; that by reason of the failure of the defendant to keep and maintain its plant and apnrtenances in good and safe condition and to inspect and examine the same from time to time,’ the plaintiff, without fault or negligence on his part, while attempting to turn on the electric light, received a severe and terrific charge and current of electricity. Ordinarily the allegations of duty and a breach thereof are not sufficient; but if the duty results from the facts stated, then the allegations of duty may be discarded as surplusage and the complaint held to be sufficient. If the allegations of the complaint concerning the relationship of the parties and the character of the injuries received make out a prima facie case of liability,, then the complaint is good as against a general.demurrer. . We think the complaint does, from the very character of the accident as set forth therein, call upon the defendant to make defense to the case of negligence in supplying electricity to the residence, which .the facts as charged make out. The business of the defendant is that of selling electricity to the people of Denver — a business so fraught with peril to the public that the highest degree of care which skill and foresight can obtain, consistent with the practical conduct of its affairs under the known methods and present state of its particular art, is demanded.—Denver Electric Co. v. Simpson, 21 Colo. 371.

The plaintiff, while attempting to do that which every patron of the company must do to make use of the electric light, received into his body a current of electricity, burning his hands and feet and permanently injuring him. Such injuries are not, under ordinary circumstances, received by persons who turn on an incandescent lamp if the company supplying the current has not been negligent. The defendant, when it contracted with the father of the plaintiff to sell electricity for light, contracted to keep its plant and appliances in such condition that no greater volnme of electricity would be carried into the house than was necessary for its proper lighting. The quantity of electricity required for lighting purposes in residences is not sufficient, if it pass through the body, to cause the injuries described by the plaintiff in his complaint. It follows, therefore, that the plaintiff must have received a very much greater quantity of electricity than the company contracted to supply. The court, therefore, did not err in overruling the demurrer to the complaint, nor in overruling the objections to the introduction of testimony.

The company insists that it is not an insurer, and that its obligation is that of using ordinary care. We are not prepared to say that it is an insurer, but the patrons of the company have the right to presume that they will not be injured in attempting to use that which the company sells, and that it will do all that human care, vigilance and foresight can reasonably do, consistent with the practical operation of its plant, to protect those who use its electric light. With reference to the liability of persons or corporations supplying electricity, Thompson, in his Commentaries on the Law of Negligence at § 796, has this to say: “It may be doubted whether persons or corporations employing for their own private advantage so dangerous an agency as electricity, ought not to be regarded as quasi-insurers, as toward third persons, against any injurious consequences which may flow from it. It may be doubted whether one who collects, or rather creates, so dangerous an agency on his own land, ought not to be held to the obligation of restraining it, that is, of insulating it, at his peril; which was the obligation put upon landowners in respect of water, which from its nature is pressing outward in all directions and continually struggling to break through any artificial barriers by which it may -be restrained.” .

The court refused instructions offered by the defendant numbered 1, 2, 3, 9 and 11; the court gave defendant’s instructions numbered 4, 6, 7, 8, 10, 12, 13, 14 and 15. The refusal of the court to give instructions offered is assigned as error. The court, we think, properly refused these instructions. No. 1 is a direction to return a verdict for the defendant. In number 2 the jury is told that the defendant was only bound to exercise reasonable care, and in number 3 reasonable care is defined to be such care as will be exercised by a reasonably prudent and cautious person under the same or similar circumstances. The instructions do not declare the law, as applicable to the facts of this case. Moreover, the court in other instructions correctly declared that the defendant was bound to exercise the highest skill, most consummate care and caution, and utmost diligence and foresight in the construction, maintenance and timely ispection of its entire plant, which was attainable, consistent with the practical conduct of its business according to the best known methods of the state of its art at and prior to the time of the disaster.

Instruction number 9 offered was not in accordance with the evidence, and was properly refused.

Instruction number 11 was to the effect that if the jury believed that the defendant had exercised the usual and customary care and precaution which its experience had demonstrated to be safe and sufficient and that the accident could not have been reasonably foreseen or prevented by any precaution taken by the defendant, the verdict must be for the defendant. The propositions stated were, in effect, given in instruction number 7 offered by the defendant.

Counsel say that the instructions given are confusing; that in giving instruction number 4 offered by the plaintiff, and 6 and 12 offered by the defendant, ■ the court gave inconsistent and irreconcilable instructions. In instruction number 4, the jury was told that in cases where the business and appliances are shown to be under the exclusive control of the defendant, and the accident is such as would not, in the ordinary course of things, occur if the defendantwere exercising proper care, or where it is shown that the real cause of the accident may be the negligence of the defendant and that the defendant knew whether it was negligent or not, it is not incumbent upon the plaintiff to point out to the jury the particular act or omission constituting the negligence; while in instructions 4, 6 and 12 offered by the defendant, and given, the jury is instructed: (1) That if the plaintiff has failed to establish negligence by a preponderance of the evidence, the verdict must be for the defendant. (2) That the omission of the defendant company to perform the duties required of it by law must be established by a preponderance of the evidence, and that unless such omission be established the verdict must be for the defendant. And (3) that if the jury is unable to determine from the evidence what was the proximate cause of the accident and injury complained of, the verdict must be for the defendant. These instructions are inconsistent, and many authorities are cited, from this and other states, holding that where two instructions are given, one correct and one incorrect, the court will not assume that the jury followed the correct statement of the law. These authorities are not applicable to this case, for the reason that the rule applies only where the giving of an incorrect instruction is prejudicial. The instructions given at the request of this defendant were more favorable than it was entitled to, and instructions given at the request of the plaintiff state the law applicable to cases like this. The defendant • so conducted its business that a member of the household of one of its patrons received a shock of electricity while engaged in turning on the light. It was shown by the testimony that the volume of the current received was many times that furnished for lighting-purposes. The injured person, it was shown, had no means of knowing what, if any, defects existed in the plant or appliances of the defendant. Moreover, the transformer from which the current for use in the residence was supplied was taken away by the company immediately after it was informed of the accident. Under such circumstances it was not improper to charge the jury that the plaintiff was not required to point out the specific act or omission which caused the accident.

In instruction number 7 the jury was told that contributory negligence would prevent the plaintiff from recovering; that such negligence must be without fault or misconduct on the part of the injured party; that if the plaintiff’s share in the negligence was innocent and not faulty, it furnished no excuse for the defendant; and that if Lawrence didnotknow, and in the exercise of reasonable care and caution could not have known, that in attempting- to turn on the electric light he was in danger of receiving an electric shock, and in so doing acted innocently and without fault, he is not guilty of such contributory negligence as will defeat his right to recover.

The instruction is objected to because it distinguishes between guilty negligence and innocent negligence, when the law recognizes no such distinction. If a person receives an injury from another, and the person injured did not know of the danger, and could not have known of it if he had exercised reasonable care and caution, he is not guilty of contributory negligence ; and it makes no difference whether the negligence contributing to the injury is innocent or faulty if the injured party by the exercise of due caution could have prevented the injury. We are inclined to agree with the appellant that the instruction given is erroneous; but there is no evidence in the case showing Lawrence to have been guilty of contributory negligence. It is asserted that Lawrence knew that he was dealing with a dangerous agency, that- he knew the qualities of electricity, that he knew that metal is a conductor, that he knew that the register was connected with the furnace or basement, or he must be presumed,to have known the structure of his own house; that he was using appliances wholly un- - der his control, and if the fixtures had been in proper repair or if the appellee had not stood upon the register, the accident could not have happened. There is no evidence showing that the plaintiff was guilty of contributory negligence. Nothing is shown in the record which would warrant a court in finding that the fixtures in the Lawrence residence were not in proper repair or that the accident could not have happened but for the want of care on the part of the plaintiff, except the testimony of the expert witnesses who testified that the accident could not have happened if the interior fixtures were in proper repair. The instruction therefore was not prejudicial to the defendant.

Under general allegations of damages the court admitted proof of the physical condition of the plaintiff before and after the injury. It is contended by the defendant that the court erred in allowing plaintiff’s witnesses to testify to injuries to particular organs, and injuries of peculiar and extraordinary kinds. The allegation of the complaint is that the .plaintiff, by reason of the injury, “suffered painful, serious and permanent injuries, in and upon his person and body, burning his hands and feet so that he was laid up and rendered sore, sick and lame for a long period of time, * * * and was and is and will be painfully and seriously burned, scarred and permanently injured for the remainder of his life.” We are of opinion that the allegation was sufficient to permit proof of the particular matters testified to, and that they were such as must be anticipated as the natural and ordinary consequences of receiving a current of electricity of such volume as the witnesses have testified the plaintiff received. The defendant did not ask to have the complaint made more specific, and it cannot he heard to complain that the court, under a general allegation, admitted proof of specific matters.

The defendant insists that the damages are excessive, and has produced a great number of authorities holding that verdicts for like amounts, awarded for similar injuries, were too large. The jury heard a detailed account of the plaintiff’s injuries and saw for themselyes the condition of the plaintiff’s hands and feet. We are not warranted in disturbing the verdict unless the amount of damages awarded is so manifestly disproportionate to the injury received as to make it apparent that the jury was influenced by prejudice or misapprehension, or by some corrupt or improper consideration.—Wall v. Livezay, 6 Colo. 474.

The defendant further says that the evidence does not sustain the verdict, and that, if all its other contentions are decided adversely to it, the judgment must he reversed because the evidence fails to show that the defendant has been negligent, but does show that the accident could not have happened but for a defect in the interior wires and fixtures, which belonged to and were under the control of the appellee. We are of opinion that the evidence supported the verdict and that there were facts testified to from which the jury was warranted in finding that the defendant was guilty of negligence, or, at least, that it failed to overcome the prima facie case made by the plaintiff. These facts appeared upon the trial — that the defendant company was in the exclusive control of a plant for the generation of electricity; that its business was that of selling electricity for lighting purposes ; that the plaintiff was a member of the family of one of the patrons of the defendant company; that it carried on its primary wires a current of a thousand volts; that a converter box under the control of the defendant was used for the purpose of supplying the residence in question with a current of 50 volts, and no more; that if the converter box, or transformer, as it is sometimes called, were in proper condition, no more than fifty volts would be carried into the house on the secondary wire although the primary wires carried very much more than one thousand volts; that the plaintiff, on a certain evening, while attempting to turn on the electric light, received a current of electricity into his body of several hundred volts; that the shock rendered him unconscious for a time, his hands and feet were seriously burned and a portion of one foot had to be amputated; that .after the accident the city electrician made an examination of the wiring in the house and an examination of the converter box; that a partial examination of the fixtures in the house disclosed no defect, and that the examination of the converter box did show a defect; that the official disconnected the house wires and took out the converter box because it was unsafe; that a current of fifty volts is not a dangerous current. With the facts before them the jury was perfectly justified in returning a verdict against the defendant.

The-defendant, in support of its contention that it was not guilty of negligence and that the plaintiff was guilty of contributory negligence, introduced testimony tending to establish these facts — that the plaintiff could not have received the shock if he had held the rubber key while turning on the light, unless the inside wiring was defective; that the plaintiff, when, attempting to turn on the light, probably stood upon the metal register connected with the earth by metal pipes; that he,probably took hold of the brass trimmings of the incandescent lamp instead of the rubber key; that no accident of the kind ever occurred at the place before; that if the voltage testified to as being necessary to produce the injuries had passed-over the wires in the house, the light would have burned with a white light, for an instant only; that the light was used by the denizens of the residence a few moments after the accident, and that the light burned steadily; that all the appliances of the company are of standard makes, and that the business methods of the company have had the approval of nineteen years of practical test and have been found sufficient; that no evidence was offered showing that appellant failed to use any precaution employed by any other company; that the transformer used was the best that had been ascertained at that time and in that state of the science of electricity. But the jury, under proper instructions, found against the defendant.

The fact that the plaintiff, in attempting to turn on the light, touched not only the rubber key but some other part of the fixtures, or that he stood upon a metal register, cannot be regarded as a want of due care and caution. The fact that the interior fixtures may have been out of repair cannot relieve the company of the responsibility it owes to the public, and owed to the plaintiff, to not permit a deadly current of electricity to enter the house if within its power to prevent. The jury was instructed that even if the company’s appliances were defective and the accident occurred by reason of such defect, nevertheless, unless the defendant knew or. could have known by the exercise of reasonable care and caution of such defect, and have repaired the same and thereby have prevented the accident, that the plaintiff conld not recover. And the jury must have found that the appliances of the company were out of repair and that it could have discovered the defect by the timely test and inspection of its transformers.

We have held in the case of a gas company, quoting from Koelsch v. Philadelphia Co., 152 Pa. St. 355, that, “while no absolute standard of duty in dealing with such agencies can be prescribed, it is safe to say in general terms that every reasonable precaution suggested by experience and the known dangers of the subject ought to be taken. This would require in the ease of a gas company not only that its pipes and fittings should be of such material and workmanship, and laid in the ground with such skill and care, as to provide against the escape of gas therefrom when new, but that such system of inspection should be maintained as would insure reasonable promptness in the detection of leaks that might occur from the deterioration of the material of the pipes, or from any other cause within the circumspection of men of ordinary skill in business.”—United Oil Company v. Roseberry, 30 Colo. 177.

The testimony shows that a very slight defect in the insulation of the wires carrying currents for distribution, or the least deterioration in the materials used for such insulation, may produce serious results, and that the climatic conditions in this vicinity are. such that the materials used for such insulation are less durable than in lower altitudes. Seasonable prudence and caution, then, would require that companies selling electricity should maintain a system of frequent inspection because of the climatic conditions peculiar, to this altitude.

The defendant introduced a contract with W. H. Lawrence, the father of the plaintiff, by the terms df which the company agreed to furnish light at a eertain stipulated price. This was introduced, probably, in support of the allegations of the supplemental answer. By this contract the subscriber agrees to comply with all the rules, regulations and other provisions printed on the contract. On the contract there is printed a provision that in case the supply of light should fail from natural causes or accident, in any way, the company shall be liable for damages only after notice, and then only for the abatement of rent during such interruption; “nor shall it-be liable in any-event for damage to person or property arising, accruing or resulting from the use of the light. ’ ’ The object of this provision is to relieve the company from the obligation it owes to the general public and its patrons. Stipulations of this character cannot relieve the company of its liability for failure to perform its duty, and courts usually decline to enforce them, upon the ground that they are unconscionable and in contravention of public policy.

Other questions are presented by the assignment of errors, but we do not discuss them. We are satisfied from an examination of the whole record that substantial justice has been done the parties; that the jury could not properly have rendered any other verdict than one holding the company responsible for the injury. The verdict of the jury being reasonable under the circumstances shown, we shall affirm the judgment. Affirmed.