Gleason v. Missouri River Power Co.

112 P. 394, 42 Mont. 238, 1910 Mont. LEXIS 139

Opinion

MR. JUSTICE SMITH

delivered the opinion of the court.

The complaint in this action, after alleging the corporate character of the Missouri River Power Company, reads as follows:

“That on the fifth day of August, 1907, and for some weeks previous thereto and for some weeks thereafter, the company had placed in complete and absolute control of its power station, near the High Ore mine in Silver Bow county, the defendant S. L. Case. At the times in this paragraph mentioned he was the superintendent over all the men working for the company in and about the said power station and in and over and about the lines carrying electric current for the company to its patrons in the city of Butte from the said power station; that on August 5, 1907, this plaintiff by the mutual agreement of himself with the company was the servant of the company, employed by the company, and engaged by the company to do line work. On the said fifth day of August, 1907, the said S. L. Case negligently gave to this plaintiff a negligent order, and negligently ordered the plaintiff to do certain work of great danger to the plaintiff, and the plaintiff obeyed said order, and was greatly injured in consequence thereof, partly, but also greatly injured in consequence of the negligence of the company hereinafter set out. The two negligent acts, to-wit, that of the defendant Case, and also that of the defendant company, concurred to produce the injury hereinafter set out, and each was a direct and a proximate cause thereof. The negligence of defendant Case was as follows: He ordered this plaintiff to work on one of the wires of the defendant company at a point about two blocks east of the Western Iron Works in Silver Bow county. The said wire was represented by the said Case to the said plaintiff to be carrying a current of electricity not in excess of twenty-six hundred and fifty (2,650) volts, and not in excess of sixty (60) amperes, and if this representation had been true, the plaintiff would not have been injured, for that the plaintiff would have worked in safety with the methods which he did use to insulate himself on a wire which carried only 60 or less amperes and 2,650 or less volts; but in truth and in fact the said wire was carrying a much larger amperage than 60, to-wit, it was carrying an amperage of about 200 amperes. This fact was unknown to the plaintiff, nor could the plaintiff, with due diligence, have ascertained that fact; bnt this fact was known to the defendant, S. L. Case, or he, by the exercise of reasonr able care, could have and would have discovered and known the same. The negligence of the company consisted in that the said wire was designed to carry, and was supposed by plaintiff and the other linemen to carry, and there was being used off of the said wire, a current not in excess of 60 amperes and 2,650 volts, but for a considerable period of time before the fifth day of August, 1907, and on the said day the company had negligently allowed to escape into the said wire, and there was escaping and going through the said wire at the said time, a current equal to 2,650 volts and about 200 amperes.

“That when the plaintiff went to work at the said point induced by the company and by S. L. Case to believe that there was only a current of 2,650 volts and 60 amperes, he sufficiently and properly and carefully insulated himself for protection against the current which the company and S. L. Case had led him to believe was there; but he was in no wise insulated nor protected from the current which was actually in the said wire as aforesaid, and by reason of the said excessive current, and the said negligent, order, and plaintiff’s careful obedience thereto, the plaintiff was grievously burned by the said current, sufficient in all respects to do great bodily injury to life and limb of men. That by the said burnings, the said defendants did injure the plaintiff’s right ear so that he is disfigured for the remainder of his natural life; did burn the plaintiff on his left arm whereby he suffered great pain and injury; did burn the plaintiff for a space of about three inches wide all the way and extending from the wrist almost to the elbow on the right arm; did so bum the plaintiff’s right hand that he can never straighten any of the fingers in the right hand save only when the wrist is at one certain angle with the radius and the ulna; and thereby did permanently and for all times render almost worthless the right hand of the plaintiff, and seriously impair his earning capacity in his trade as an electrical appliance worker for the remainder of his natural life. That the plain tiff on the said fifth day of August, 1907, was without negligence on his part and using all care and precaution for his own safety.”

A general demurrer to the complaint was interposed and overruled. Thereupon the defendants answered jointly, admitting that Case “was the company’s superintendent at its power station near the High Ore mine”; that the plaintiff was in the employ of the defendant corporation, for hire; denying that Case at any time “negligently gave him a negligent order, or negligently or otherwise ordered him to do work of great danger”; admitting that plaintiff “while at .work at a point near the Western Iron Works received certain injuries,” but denying “that the injuries were due to or occasioned by any negligence or negligent omission on the part of the defendants or either of them.” Defendants also alleged affirmatively, as follows: “That the injuries, if any, sustained by the plaintiff were due to and proximately caused by Ms own contributing fault and carelessness”; and were “due to and caused by dangers, the risk of injury' from which plaintiff had theretofore assumed.” There was a reply putting in issue the affirmative allegations of the answer. The cause was. tried to a jury, which returned a verdict in favor of the plaintiff, and against both defendants, for the sum of $8,000. Judgment was entered for tMs sum, whereupon the defendants moved for a new trial. The court entered an order denying the motion, on condition that the plaintiff remit $2,000 from the judgment. This he did. The appeals are from the judgment and the order denying a new trial.

Plaintiff testified at the trial: “My position with the company was that of lineman and wireman. On August 4, 1907, I replaced a fuse at a point about two blocks east of the Western. Iron Works. I replaced a wire in the place of a fuse at Mr. Case’s request. The day before I took a fuse off of there and gave them to Mm. They had been blown. I presume that excessive current had blown them. I examined one of these fuses about thirty-two days afterward, after I was able to go to the place. As to the amperage of the fuse taken out on Sunday, August 4, 1907, I found that the fuse had been reloaded with a wire sufficient to carry 200 amperes. I was sufficiently acquainted with electrical work to know that this fuse carried 200 amperes without breaking down; that much or more. This time, thirty-two days after I was injured, was the first time I knew they were 200-ampere fuses. On August 5, between 8 and 9:30 o’clock in the morning, I went to Mr. Case’s office, and he said that I should take Mr. Collins over the line and show him our customers. He then told me to go to the place that I had removed the fuses the day before, and put in the wires and take out the wires, and to put fuses back in place of them, to solder a No. 6 wire over the fuse that had been blown, and to put in the same fuse that I had given to him the day before. He told me that the wire was perfectly safe to work on, and that the current did not exceed 60 amperes at any time, and that a 60-ampere fuse would be able to carry it. I went to the place, climbed the pole, took out the wires and replaced fuse No. 1 on the right-hand side, and took my pliers and took hold of No. 2 and shoved it in No. 2 fuse-box, and then went and took hold of No. 3, and there was an explosion. It blew the fuse. A piece blew out; it burned out in the form of an are, which was caused from exploding the fuse. The are was so severe it burned my arm and face. At that time the voltage on that line was 2,650. There was no fault to be found with the voltage. At that time a No. 8 wire was carrying that current into the fuse-box. A No. 8 wire would carry safely and continuously 60 amperes. It would not carry any more without fusing, not if it was carrying a continuous load. It would not carry 200 amperage. The size of wire which is proper and useful to carry 200 amperage is a No. 00. A No. 8 wire is a great many times smaller than a No. 00. These wires you show me are the three wires that I had put in the fuse block that Mr. Case ordered me to. These wires will carry about 75 amperes without breaking down—without being burned up. They will not carry any more of a continuous current. The pressure on the line was in fact 2,650 volts and 200 amperes. . I know that from the fact that it had blown_ a 200-amperage fuse on the morning previous. My opinion as to the safety or danger of a man working on that pole replacing those fuses on a voltage of 2,650 and an amperage of 200 is that it would be very dangerous and could not be done. Before I saw the explosion and the sheet of flame, I had no knowledge that the wire carried 200 amperes. An arc is an instantaneous movement of current from one conductor to another. It jumps the intermediate space. There could have been no arc there, or formed there, if the amperage had been 60 amperes or less. Sixty amperes or less could not have caused any explosion to blow the fuse as this did. Two hundred amperes were present to cause that explosion. By voltage, I mean the pressure on the wire. Amperage is the measurement of the current. Voltage is the pressure, and amperage is the amount of the current used. If we take it in the form of water, voltage is the pressure on 'the main, and the amperage is the number of gallons that comes through the main; that would be a good comparison. When I placed the wires in the fuse block I did not get any flash. I took the three that had been blown out and soldered across them a piece of No. 6 wire, - 1fleh is a little larger than a No. 8. When the explosion occurred I had not got the third fuse up to the block; the second had simply been placed in. The third fuse at no time touched either terminal of the fuse bloek--it never got anywhere near the block; it was not within a foot of the block. I arrive at the amperes in that wire from the very fact that it had blown the fuse that would carry 200 amperes the day before, and from the intensity of the are I know 80 amperes of current could not possibly cause that. I did not put jumpers across in place of the fuse or around the fuse blocks. ’ ’

James Collins, who was present at the time of the accident, testified for the plaintiff: “When the arc started, Gleason was putting on the second fuse; I do not know what became of the third fuse. We always try to avoid shutting down a customer. The only way in case of removing a fuse block is to jumper across—that is, to bridge across the fuse block so that when you remove the fuse the current would have some means of passing through, so that there would be a continuous current. If you put a jumper across and remove the plug I don’t think there is any probability of getting an arc. If you don’t jumper across and remove the block while the current is going through, sometimes you will get an arc. I have removed lots of these blocks and never got an arc to speak of. I went back in the afternoon and removed all of the old fuses that were burned out and put in new ones. I did not get an arc when I made the connection, and I did not jumper it across.- Linemen know from personal experience that jumpering is the safer method. I know how Gleason was making this change. That is the way I myself would have done it. The question of placing a jumper on before making the change depends on the current as to whether it is safe or not. Two hundred amperes would make an arc sufficient to burn a man; 60 amperes would not hurt a man at all.”

E. M. De Mars testified for the plaintiff that he was an electrical worker of twenty-two years’ experience and was foreman of an electrical company. Being shown the fuse which plaintiff claimed to be the -third one in question, he testified: “Three hundred amperes would not explode this; it would carry 300 continuously. I would say that it would take 1,000 amperes to explode this fuse, and a voltage of 2,650. There is a difference between blowing a fuse and exploding it. It would take 100 amperes to blow the copper wire on the back. The soldering would melt and the fuse, but the copper wire carries great heat. High amperage has the effect of burning the wire. Bridging or jumping across is considered the safe way by workmen for a number of years. From my experience and from my work for the last ten years I would say that it was safer to furnish a way for current to flow, rather than to have the opportunity to form an arc. The safety or danger of putting in those fuse blocks with or without jumpers depends entirely on the current in the wire. There is always danger in high-tension pressure.”

For the defendant, James C, Dow testified that continuity of service is the main aim of an electrical service plant. “It is impressed on all the employees. Taking out a fuse would break the continuity of service. You can preserve continuity of service by jumpering around a fuse; you always try to preserve continuity of service when a lineman is working.”

W. S. Guthrie, an electrical engineer, testified: “As I remember it, there were four customers on the line that day. The customers were the Bed Metal Company, which was behind the place where Gleason was working, the Western Iron Works was on the same line, the Crescent Creamery, the Western Lumber Company. I do not know whether the Butte Beduction Works was on the far end of it at that time or not. From my experience, you would get a fearful are by breaking the contacts on a line which is carrying 2,650 volts and 60 amperes. An are which would be formed at the same voltage and 200 amperes would be just that much worse. The amperage has nothing to do with an arc. One way to preserve continuity of service is to jumper with a copper wire. You cannot pull a fuse out without getting an are, but if you jumper you get no flash or are. The safer way is to jumper. It is not customary when you send a man to change a fuse to tell him whether to jumper it or not. He is supposed to use his own judgment whether he should jumper it or not, and to do everything he can for his own safety. ’ ’

S. L. Case testified: “I am one of the defendants. There were probably half a dozen customers on that line altogether. I think there were six. The Leonard and Barus were on that line. The Barus load was about 1,350 to 1,400 horse-power. The amperage of the Barus would be approximately 270 and some odd. The Leonard was in addition to that, as was also the Western Lumber Company, the Western Iron Works, the Crescent Creamery, and the Home Baking Company. At 1 o’clock P. M. of that day the amperage on that line would be approximately 480. Gleason did not bring the fuses that had been burned back to me, and I did not tell him as to whether or not there was an additional 140 amperes of current flowing over the line from 11 o’clock Sunday morning up to the time of the accident. I will say there was no additional current flowing on that line during that time. If there had been I would have known it.”

E. M. De Mars, recalled for the defendant, testified that in his judgment an amperage of 60, under the circumstances shown, would not cause an are.

James Keefe, city electrician of Butte, testified: “Of course, every man does his work a little different, but I would put a jumper around in order to be safe, if I were sent out on a wire with a current which I knew contained 2,650 volts and 60 amperes and the line had three fuses which I was to take out and replace. By jumpering you will prevent an arc.”

L. L. Quigley testified: “On August 5, feeders 4 and 5 were cabled in together going into the station at that time. On No. 4 there would be about 220 amperes and on No. 5 there would be close to 500—480 to 500. No. 4 and 5 were headed together at the bridge. The Barus and Leonard were working at 11 that morning. The load that was going over No. 4 feeder was the same load that was going out over there for two or three days previous. ’ ’

AV. L. Miller testified: “In August, 1907, I was employed by the Missouri Biver Power Company and had charge of the Butte station which is here in question in this case. I was very well informed at that time with the customers, with their leads and loads that were fed from the Butte steam plant. I was familiar with the load which was used by the AVestern Lumber Works on and before August 5, 1907. It was taking practically nothing at that time. I am familiar with the current which was going to the Crescent Creamery; it was in the neighborhood of 1 ampere; the Home Baking Company was taking about 1 ampere; the current which was being fed to the Western Iron Works was about 5 to 10 amperes. About 10 amperes I will say from my knowledge and experience would be down at the junction pole at the Western Iron Works. The amperes which went to the Rarns mine at that time was 140 amperes. There were 10 amperes going down over this line to the Western Iron Works in that direction, feeding the customers. It divided itself equally between the two feeders; therefore there would be 5 amperes' on it. The total current for the Rarus mine and which it was taking, was 340 amperes. A smaller wire will fuse quicker for an equal current. If the same current passed through a No. 6 wire and a No. 8 wire, the No. 8 would fuse first. The Rarus was running on the day in question. The Leonard mine on the morning of August 5th was using 410 amperes, and the Rarus 340 amperes. The precipitating plants with the other small customers were using about 10 amperes. The entire amperage of the three wires on which Gleason was working would be the sum of the continuous current going to the Iron Works and the Crescent Creamery.”

The foregoing is by no means all the evidence, but it is sufficient to illustrate the situation as presented to this court.

1. Appellants contend that the evidence shows, as a matter of law, that plaintiff was guilty of contributory negligence. On the part of the respondent it is urged that there is no sufficient plea of such a defense. The latter question might be disposed of by saying that it was not raised in the court below. However, as there must be a new trial, we think this court should express its views on the subject.

It has long been settled law in this state that the presence of contributory negligence is a matter of affirmative defense. (Schroder v. Montana Iron Works, 38 Mont. 474, 100 Pac. 619.) This being so, it follows that contributory negligence should be pleaded with the same degree of particularity as is required of the plaintiff in pleading negligence on the part of the defendant. The manner of doing so was discussed at length by this court in the case of Pullen v. City of Butte, 38 Mont. 194, 99 Pac. 290, 21 L. R. A., n. s., 42. (See Phillips on Code Pleading, sec. 503.) The same reasoning applies to the plea of assumption of risk. We are of opinion that the facts in the case would not warrant the court in deciding, as a matter of law, that plaintiff was guilty of contributory negligence.

2. It is said that the evidence is insufficient to justify a verdict for the plaintiff. The question presented was found so difficult of solution that a second argument was ordered and has been had. The cause is sui generis. We are unable to determine the effect of the testimony. No question of the credibility of witnesses has been or could be regarded. We have considered only the uneontradicted testimony, principally that of plaintiff himself; and yet we are unable to determine its meaning. No importance can be attached to the fact that the plaintiff had a verdict below or that the district court denied a new trial. The members of this court are in as favorable a situation to analyze the testimony as were the district judge and the jury. Indeed, we have had the benefit of two exhaustive and interesting arguments by learned counsel, the second after they had been fully advised of the particular difficulties confronting the court and had confessedly subjected the evidence to the closest scrutiny, in the light of technical knowledge of the mysterious and intricate workings of electrical currents, acquired after the cause was first argued. We regret that the expert testimony given by counsel at the second argument is not in the record. To illustrate the situation presented: The plaintiff displayed considerable knowledge of electricity. He testified as an expert to a certain degree. He declared positively that the pressure on the line upon which he was working was 200 amperes, and gave the reason for his conclusion. He also said that an amperage of 60 would not form an are such as was caused by this current. Let us assume that this testimony was sufficient prima facie to establish the fact. Again he declared that a No. 8 wire was carrying the current into the fuse-box, and that a wire of that size would carry “safely and continuously” 60 amperes and no more, without fusing. He used the expression “not if it was carrying a continuous load.” And again he said: “It would not carry 200 amperes.” If, as he said, the No. 8 wire leading into the fuse-box would not carry 200 amperes of current, but only 60, how can it be possible that 200 amperes got into the fuse-box? How did that amount of current get across the No. 8 wire? That the load was a continuous one is shown by the allegations of Ms complaint wherein he avers that for a considerable period of time before the fifth day of August the company “negligently allowed to escape into the wire, and there was escaping into and going through said wire at the said time, a current equal to about 200 amperes.” Does not the testimony last quoted nullify the effect of Ms previous declaration?

Again, it is said that the defendants’ witnesses supplied testimony showing that the entire load of electricity leaving the steam plant to supply the Rarus and Leonard mines and other works could, under certain conditions, escape into the wire leading to the fuse-box. Counsel for the respondent emphatically declare this to be the fact, while appellants’ counsel, with equal emphasis and certainty of expression, has informed the court that it is not true. Both claim to base their conclusions upon the evidence. We are unable to determine which is correct. The evidence is too meager to enable us to form a conclusion.

Counsel also disagree as to whether the evidence shows that the pole upon which plaintiff was engaged was at the junction of the “main feeder” supplying the Rarus and Leonard mines and the line running directly to the Western Iron Works, or whether it was at a point beyond that at which the current left the “main feeder” to go to the mines. And there are many minor differences of opinion, all of which are important. In an ordinary case we could probably determine, with more or less certainty, what the testimony disclosed. But in this case we are unable to do so, and are therefore forced to the opinion that the verdict of the jury was a mere guess. If we cannot understand the evidence, with the able assistance afforded by counsel, it seems fair to say that the jury could not have done so. We do not intend to reflect on our own intelligence or that of the jury. The evidence is simply insufficient to warrant the drawing of logical conclusions. We have no doubt that upon a retrial experts can explain away the difficulties now surrounding the case. Special questions should be submitted to the jury, to the end that the facts may be definitely settled before judgment is entered.

The judgment and order appealed from are reversed, and the canse is remanded for a new trial.

Reversed and remanded.

Mr. Chief Justice Brantly and Mr. Justice Holloway concur.