Hagerstown & Frederick Railway Co. v. State Ex Rel. Weaver

115 A. 783, 139 Md. 507, 19 A.L.R. 797, 1921 Md. LEXIS 179

• Court: Court of Appeals of Maryland
• Decided: November 30, 1921
• Status: Published

Opinion

Thomas, J.,

delivered the opinion of the Court.

The Hagerstown and Frederick Railway Company in August, 1920, and for seAmal years prior thereto, owned and operated an electric plant at Security, in Washington County, Maryland, and was engaged in the business of generating and furnishing electric light and power. The current was furnished or transmitted through three high tension “transmission wires” strung on poles, which extended from Security to Smithsburg, in Washington County, Maryland, and thence along the side of the state road to Waynesboro, Pennsylvania. At the point of the accident which gave rise to this suit, about two miles from Smithsburg, the poles of the appellant were located “just inside and adjacent to” a wire fence on the west side of the highway. This fence ran along the side of the highway and under the electric wires of the railway company. several rods, and them in a westerly direction for some distance along the side of a county road which intersected the state road. On the opposite side of the state road, which was about thirty feet wide, and standing just inside of the fence, on that side of the road, was a large weeping willow-tree, from five to six feet in diameter. A large limb of this tree extended out over the highway, and about 6.30 o’clock in the afternoon of August 16th, 1920, the limb gave way and fell across the state road. In falling it struck and broke one of the transmission wires of the railway company, and one end of the broken wire came in contact with the wire fence, which immediately became charged with tbe electric current.

.The crash of the limb was- heard by a number of persons in the neighborhood, who went to the point where it fell to see what had happened. Among them were Mrs. Mary A. Weaver and her little son, Vernon Edwin Weaver, about five years old, who lived on the county road mentioned a short distance from the state road. The bed of the county road was covered with broken stone, and between the side drain and the wire fence referred to was a very narrow path or footway. The little boy, who was barefooted, in order to avoid tbe broken stone, walked on the path, and as he approached the state road he came in contact with the wire fence, and was instantly killed. This suit was brought by the father of the little boy against the railway company on the ground that his death was caused by the negligence of the company. The trial of the case in the court below resulted in a verdict and judgment in favor of the plaintiff, and this appeal is from that judgment.

During the trial the defendant reserved sixteen exceptions to the rulings of the court on the evidence, and one to its action on the prayers. The exceptions to the evidence may he considered together.

The plaintiff offered evidence tending to show that the tree in question was old and decayed; that where the limb broke from the trunk of the tree it was decayed; that the limb was a very large one, estimated by the various witnesses to be from ten to twenty inches in diameter at the butt, and extended out over the highway in such a position as to indicate that if it fell it would fall upon the wires of the defendant; that the weather was clear, and that the giving away of the limb was not due to a storm but to the decayed condition of the tree; that during the summer of 1920, and previous to the day mentioned, two other limbs of the tree had given away and fallen across the road under similar conditions of the weather, and that where they broke from the trunk of the tree the tree was doted or decayed, and that the decayed appearance and condition of the tree could be observed by persons “passing along the highway.”

The particular part of the evidence referred to in the first sixteen exceptions is that relating to the falling of other limbs from the tree. That evidence, in connection with the other evidence we have mentioned, was not only admissible for the purpose of showing that the tree was decayed, but also for the purpose of showing that the defendant could, by the exercise of reasonable care, have known of its dangerous condition. The case of Charles v. Baltimore, 138 Md. 523, cited by the appellant, does not sustain these exceptions. There the suit was brought to recover’ the cost of repairing an automobile which was damaged by being driven against a part of a bridge on one of the streets of the city. The bridge was generally lighted by six arc lights;, but just at the time of the accident,' owing to the “short circuiting” of the electric current which supplied these lights, the lights were out. The evidence showed that the short circuit was caused by the extreme condition of the weather that evening, and that within forty minutes after notice to the city that the lights were out the proper officer was on the ground to repair the lights. The Court held that the plaintiff had failed to1 show any neg ligence on the part of the city, and that the fact that other accidents had previously occurred at the same bridge was not admissible as reflecting upon the question of negligence of the city at the time of the accident involved in that suit. Here the evidence of the falling of other limbs was offered in connection with evidence of the condition of the trunk of the tree where those limbs gave way, for the purpose of showing that the tree was decayed.

The granted prayers of the plaintiff proceeded upon the theory that if the defendant knew, or by the exercise of reasonable care could have known, of the dangerous condition of the tree in time to have prevented the accident, then it was negligent in failing to have the limb removed or to protect its wires, while the instructions sought by the defendant asserted, and the contentions of the appellant are: (1) that there was no evidence of negligence on its part, and (2) that, as its poles were planted on itsi own right of way, and the tree in question was on private property, it had no right to remove the limb, and that no negligence can he imputed to it because of its failure to do so or to adopt any other means of protecting its wires.

It is said in 20 C. J., 347: “Electric companies are liable for injuries by electric current resulting from their negligence to a person on a public thoroughfare. Persons or companies operating systems for the transmission of electricity over public highways owe to the public the duty of properly constructing and maintaining their poles and wires and of exercising for the protection of all persons legally using the highways the high degree of care commensurate with the danger,” and in 9 R. C. L., p. 1200, speaking of the care to he exercised, it is said: “The degree of care which will satisfy this requirement varies, of course, with the danger which will be incurred by negligence, and must be commensurate with the danger involved, and, according to numerous decisions, where the wires maintained by a company are designed to carry a strong and powerful current of electricity, so that persons coming in contact with them are certain to be seriously injured, if not killed, the law imposes upon the company the duty of exercising the utmost care and prudence consistent with the practical operation of its plant, to prevent such injury. This is especially true of high tension wires suspended over the streets of populous cities or towns; for here the danger is great, and the care exercised must be commensurate with it.” Again, on page 1215 of the same volume, it is said: “The duty of electric companies is not limited to keeping their own wires, in the streets and highways, in a safe condition, but extends to the exercise of due care and diligence for the prevention of the escape of the dangerous force in their service through any wires brought in contact with their own, and of its transmission thereby to any one using the streets. Only in this way can the public receive that protection due it while exercising its rights in the highways in or over which electric wires are suspended, and it is accordingly often held that electric companies maintaining wires carrying heavy charges of electricity are under obligation to maintain some kind of safeguard to prevent their contact with other wires.” The same rule has been applied and the same degree of care required by the decisions in this State. In West. Un. Tel. Co. v. State, Use of Nelson, 82 Md. 293, a child about eleven years of age was killed while on one of the streets of Baltimore City- by coming: in contact with a broken telephone wire attached to a pole of the telegraph company, the end of which passed over or around the feed wire of the City and Suburban Railway Company and extended to the pavement below. The broken telephone wire did not belong to the telegraph company or to the railway company, but it had been allowed to remain in that position about two weeks. In the course of the opinion this Court, speaking through Judge Page, said: “Both of the defendants were using the streets under the permission of the State and municipal authorities, for purposes of private gain by means of agencies such as could and would become dangerous to human life if not properly and carefully employed. The railway company pursued its business by means of cars propelled by electricity, partially supplied through feed-wires over and along the edge of the pavement. The telegraph company had its poles along the curb-line, and its wires extending along the street were over and along the feed wire, which, though insulated, carried a deadly current. * * * They owed it to Nelson that his lawful use of the street, should be substantially as safe as it was before the telegraph and railway plants had' so occupied it. It was their plain duty, not only, to properly erect their plants, but to maintain them in such condition as not to endanger the public.” Nelsons Case was approved and followed in Brown v. Edison Elec. Co., 90 Md. 400, and in Walter v. Baltimore Elec. Co., 109 Md. 513. In Walters Case a boy eight years old was injured, while passing along one of the streets of Baltimore City, by coming in contact with a hanging wire, and the Court, after stating that the evidence did not show the existence of any “sudden or tmforeseen cause for the falling of the wire, nor show * * * whether it fell before or at the time of its coming in contact with the boy,” said: “The recent widespread adoption of overhead wires upon public streets for the transmission of high tension electric currents for supplying light and power has been followed by numerous injuries to persons who have come in contact with broken and fallen wires. The series of damage suits flowing from these accidents have called for frequent consideration by the courts of the reciprocal rights and duties of the public and the owners of those dangerous instrumentalities. The courts agree that outside of any contractual relation the very nature of the business of transmitting such currents along highways1 imposes upon those engaged in it the legal duty to exercise, for the protection of all persons lawfully using the highways, the high degree of care commensurate with the danger incident to the proximity thereto- of the wires charged with their invisible but deadly power.”

In the light of these well settled principles it becomes apparent that the court below properly refused to withdraw this case from the jury. The high degree of care required of such companies must he exercised not only in the construction hut also in the maintenance of their plants. The fact that the appellant’s poles were planted on its own private right of way did not relieve it of the duty to use that degree of care commensurate with the danger to which those using the highway were exposed by reason of the construction and maintenance of its high tension wires. The obligation of s-ueh companies to exercise proper care is not determined "by their right to construct and maintain their lines^ hut rests upon their duty to protect others while in the lawful exercise of their rights. As we have said, there was evidence tending to show that the appellant by the exercise of proper care could have known that the tree was decayed, and that the limb that gave way would probably fall and break its wire, and that it did nothing either to protect its wires or to protect the public from injury that might he caused by a fallen wire. To hold that the appellant was relieved from all obligation or duty to the public simply because the tree stood on private property would deprive those lawfully and properly using the highway of the protection they were entitled to. If electric companies are negligent in permitting broken wires to remain in contact with their high tension wires, 'and are liable for injuries resulting from such negligence, as in Nelson's Case, supra, there is greater reason why they should he held liable for injuries resulting from maintaining their lines so close to a decayed tree as to endanger those in the lawful use of a highway. The appellant’s line was on its private right of way where the appellant had a right to construct and maintain it. But it was also along a public highway where the public and the little child that was killed had a right to be, and the company was, therefore, required in maintaining its line to exercise that high degree of care commensurate with the danger* to which it exposed those using the highway. If the proximity of its line to the decayed tree rendered the highway unsafe for the use of the public, it was the duty of the appellant either to have the limb removed or to exercise proper care to protect its wires, and if the injury complained of was the result of its failure to' discharge that duty it should be held liable.

In the cases of Albany v. Watervliet T. & R. R. Co., 76 Hun. 136, and Electric Railway Company v. Shelton, 89 Tenn. 424, the facts were entirely different from the facts in the case at bar, and the decisions in those cases do not sustain the contentions of the appellant in this case.

Finding no reversible error in any of the rulings of the court below, the judgment from which this appeal was taken must be affirmed.

Judgment affirmed, with costs.