Hough v. Grants Pass Power Co.

69 P. 655, 41 Or. 531, 1902 Ore. LEXIS 122

Opinion

Mr. Justice Wolvbrton,

after stating the facts, delivered the opinion of the court.

1. The first question presented is whether the complaint states facts sufficient to constitute a cause of action, which must be considered in view of the verdict in favor of plaintiff. The specific objection urged is that it is nowhere alleged that Brown, the manager of the defendant company, knew of the danger to which the deceased was exposed, or that deceased was ignorant-thereof, or even that there was any danger attending the specific work in which he was engaged. Among other things, it is alleged that it was the duty of Brown to avoid exposing the deceased to unnecessary danger, and to warn him of such dangers, or to which any act or failure of duty on the part of the defendant would expose him; that the deceased, with the knowledge of Brown, and pursuant to his direction, was worldng on said line, which work was necessary to be completed before the same was in a safe and proper condition to use in lighting the town the night of said day, and while deceased was so at work the defendant neglected and failed to give the ordinary or timely notice to its employes at its power house that the deceased was still working on the line, and so prevent the electric current from being turned on, and did carelessly and negligently fail to warn the deceased of his danger, which was- or should have been known to Brown, in consequence whereof the current was turned on, and the injury ensued. This condensed statement of the contents of the complaint almost answers the objection, without further comment. It is alleged that Brown did know or should have known of'the danger attending this condition, which allegation is amply sufficient to charge him with such knowledge, and to let in proof to that purpose.

2. It was not necessary for plaintiff to allege that the deceased was without knowledge of his danger, because he was directed to work upon dead wires, and presumably they would not be rendered dangerous without due notice and warning to him.

3. The danger was one not incident to the place in which he assented to work, but resulted directly and immediately from the negligent act of the employer in permitting to be transmitted over the wires a deadly current of electricity, thus rendering the work that was before perfectly safe extremely perilous and hazardous to life. Speaking generally, the vocation of a lineman may be classed as hazardous, but in this instance neither the immediate work in hand, nor the place in which it was performed, was hazardous or dangerous, and it was the duty of the defendant to take proper and reasonable precautions to guard against converting his position of safety into one of peril. It was therefore unnecessary for the pleader to go further than to allege the duty, and the neglect thereof which directly conduced to the danger, and consequently to the injury of the deceased. It would be an idle ceremony to require plaintiff to allege that deceased was without knowledge that his position was perilous by reason of his employer’s liability to turn on the electricity, which the duty of the latter required he should not do unless he gave notice or warning thereof: Carlson v. Oregon S. L. Ry. Co. 21 Or. 450, 454, 455 (28 Pac. 497); Promer v. Milwaukee L. S. & W. Ry. Co. 90 Wis. 215 (63 N. W. 90, 48 Am. St. Rep. 905). He assumed no risk of that kind by assenting to do the work, whether it was with or without such knowledge. A person must so use his property as not to wantonly injure another, and a servant legally assumes no more danger or risk by working for a reckless employer than he does for a careful one. It is only when he enters a place of peril, obviously so, or knowing it to be such, that he assumes the risk incident thereto.

4. It is contended that the complaint is faulty because it contains no allegation that there existed any custom of the company to give notice at the power house that persons were still working on the line, or anything of equivalent nature. The complaint was evidently drafted with the purpose of establishing negligence by showing a failure to give such notice in the ordinary and usual way, thus implying that there existed a customary mode or manner by which it was transmitted to or imparted at the power house. It contains, also, a general allegation that the negligence consisted in not taking ordinary or reasonable care or means to prevent said electric current from being generated and turned on said wires when deceased was working among them, etc. It might have been better, as a technical pleading, to set out the customary manner of giving the notice and its nonobservance; but we are of the opinion that the complaint is sufficient when construed as a whole, especially after verdict.

5. There is another criticism relative to the allegation that defendant was negligent in failing to furnish deceased with insulated nippers or rubber gloves, because not coupled with an allegation showing the necessity of providing such appliances; but, as the complaint is found to be sufficient in the statement of negligence in one respect, it is good, as against a general demurrer, even if deficient in the statement of another instance of want of care.

6. A day or two before the injury occurred, a fire damaged the lighting system of the defendant to such an extent that it was necessary to repair it before further general use could be made of it. The power house where the electricity was generated is situated about a mile distant from tbe office, but was connected therewith by a telephone. On the evening of October 2, 1899, the deceased ascended a pole for the purpose of tying four primary wires that had been drawn across the upper of the two cross arms attached to the pole, and thus completing the work of repairing the system and making it ready for use again. While so working he was heard to call out, and seen to be hanging for an instant by his legs and arms on the cross arms, and then to fall to'the ground, a distance of thirty feet; and, when approached, life was extinct. W. L. Ireland testified that the deceased ascended a pole at the junction of Front and Fifth streets between fifteen and twenty minutes prior to six o’clock p. m., that two or three minutes later he ascended the pole from which he fell, and that he noticed that the electric lights were on immediately afterwards. Moorlock stated that the accident occurred “pretty near quitting time.” George I. Brown, who was secretary and manager of the defendant company, testified that while the deceased was on the pole at the corner of Front and Fifth streets, and while standing within thirty-five or forty feet thereof, he directed Haskins, who was riding a bicycle, and was sixty-five feet or more distant from him, to go by the power house and tell Gentner, who was attending the dynamo, “not to turn the current on,” and that this was close to an hour before the accident occurred; that witness subsequently went to the opera house, passing within fifty or sixty feet of the central office of the telephone company; that he had telephone connection with the power house, but that he thought the line was not in good working condition that evening. Haskins was in the employ of the defendant, and at the time was working on a dam, the location of which, with reference to the power house, does not appear. He needed some nails for his work, which Brown authorized him to obtain, and went to the Jewell Hardware Co.’s store for-them. That he reached the store about half an hour before the accident; that he was there twelve or thirteen minutes, and then started away, and that about fifteen or twenty minutes afterwards the accident was reported at the store. Gentner testified that he was attending the dynamo, and had charge of the power house; that he turned on the current four or five minutes before Haskins arrived; that Haskins told him of Brown’s directions, and that he turned it off at once; that the time was a quarter of six or seven o’clock; and that the telephone was in good working order in the evening. It was further shown that the primary wires carried 2,200 volts, and that it required two or three minutes after the dynamo was set in motion to get a full current through them; also that it was customary, after telephone connection had been made with the power house, to notify the person in charge by that means when workmen were on the lines, and, if there was any rush work to be done before the lights could be turned on, it was the usual custom to notify the linemen, and if they were not notified they generally ceased work about six o’clock, or whenever it got too dark to see.

At the close of plaintiff’s testimony a motion for a nonsuit was made and overruled, and, after all the testimony had been submitted, the court, among other things, gave the jury these instructions :■

“If you find from the evidence that the deceased at the time was worldng on the electric light wires of the defendant with its knowledge or by its directions, and was killed by an electric current turned upon said wires by the defendant while he (deceased) was working upon them, and that the defendant, by using the ordinary and usual means of communication with its power house, viz., the telephone, could have prevented the electric current from being turned upon and over said wires at that time, but the defendant chose some other, less direct and more uncertain, mode of communicating with the power house, and that by reason thereof the said communication was not received at said power house until after the said current was turned on said wires on which the deceased was working, and that deceased received said current, and was killed by the shock therefrom, such finding would warrant you in further finding that the defendant was negligent. You may consider all these matters in determining whether or not the defendant was guilty of negligence at the time referred to.

“Where the negligence of the master is combined with the negligence of a fellow servant in producing the injury, which would not have happened but for the negligence of the master, and the person injured is himself free from negligence, the negligence of the fellow servant will not relieve the master from liability for the injuries so received.

“If a servant is charged with the performance of one of the master’s duties, then the master must answer for his negligence in the discharge of that duty; and, if the servant whose negligence caused the injury was at the time performing one of the master’s personal duties to his servants, the master is liable.”

One reason urged why the nonsuit should have been granted is that plaintiff alleged that the defendant was negligent in not furnishing the deceased with rubber gloves or insulated nippers, and having failed to offer any proof to sustain the allegation, except that a pair of uninsulated nippers was found across one of the wires after the accident, he had not made a case sufficient to go to the jury. The manifest answer to this is that he was not required to rely upon this particular cause of negligence assigned, if he had another upon which he could depend for recovery. This matter was commingled in the complaint with other allegations of fact, which, if well founded, were sufficient without it to support the action.

The other question presented, both by the motion for a non-suit and by the instructions, is one of more difficulty. Tersely stated, it is whether Brown discharged his duty to the deceased, as an employe of the company, by directing Haskins to go by the power house and notify Gentner not to turn on the electricity until ’further notified, and thereby relieved the company from liability for the injury sustained. The real situation is readily apparent. There was ample evidence from which the jury might have reasonably drawn the inference that Brown was exercising personal supervision of the work then being done. He was with the deceased shortly prior to the accident, supervising the work, and gave the directions to Hasldns within his hearing. The duty which Brown attempted to perform by such directions was one personal to the master. It devolved upon him, under the attending circumstances and conditions, to notify the operator at the dynamo not to turn on the electricity, and thus to protect the lives of the company’s employes. The duty could have been discharged if he had taken reasonable precautions, such as would ordinarily be adopted by a prudent and reasonable person having experience in such matters; but it was not discharged by the mere selection of an agent, with directions to give the notice, whether the agent was a competent and careful person or not. He was still responsible for any dereliction of duty on the part of the agent, because he was directed to discharge a part of the master’s duties, and therefore became vice principal, and in no sense a fellow servant with the injured party. This is not a ease for the application of any general rule for the guidance, direction, and admonition of employes, but is one of special emergency. The lighting system of the defendant was, by reason of the damages sustained by fire, out of repair, and the deceased, with others, had been put to work by the general manager with a view to a quick and complete readjustment sufficient for use on the night of the accident, or at least such is the legitimate inference to be drawn from the testimony; and the general manager was looking personally to the protection of his men, and was discharging a personal duty, and he could not relieve the company of liability by delegating it to another, unless that other also exercised reasonable care and precaution in the discharge of such duty: Wheeler v. Wason Mfg. Co. 135 Mass. 294; Schroder v. Chicago & A. R. Co., 108 Mo. 322 (18 S. W. 1094, 18 L. R. A. 827); Promer v. Milwaukee L. S. & W. Ry. Co., 90 Wis. 215 (63 N. W. 90, 48 Am. St. Rep. 905); McCampbell v. Cunard S. S. Co., 69 Hun 131 (23 N. Y. Supp. 477); Faulkner v. Mammoth Min. Co., (Utah) 66 Pac. 799; Tedford v. Los Angeles Elec. Co., 134 Cal. 76 (66 Pac. 76, 54 L. R. A. 85); Carleton Min. & Mill. Co. v. Ryan, 68 Pac. 279.

This is the theory, no doubt, upon which the first and third instructions before stated were given, and there was ample evidence adduced upon which to submit the case to the jury in that light. There was a conflict in the testimony as to the time the direction was given Haskins with reference to the time of the injury, and it was for the jury to say whether timely precaution had been taken to get notice to the tender at the dynamo by such means before he would ordinarily turn on the electricity. And again, it was for the jury to sajr whether Haskins, acting in the capacity of vice principal, used reasonable diligence and precaution in reaching the power house in time to impart the instruction. So, also, it was for them to say whether a reasonable and prudent person would not have made use of the telephone, under the exigencies then existing, rather than to have given the directions through Haskins. A further objection is made to the instructions because it is assumed thereby that the ordinary and usual means of communicating with the power house was by telephone. There is evidence in the case that the telephone was in good working order at that time. Indeed, Brown himself admits as much, but seeks to excuse his omission to use it by want of knowledge as to its condition; but it is not disputed that, when in working order, such was the ordinary and usual means of communicating with the power house. These instructions were therefore suitable to the facts adduced, and properly given. In other respects the evidence was ample to carry the case to the jury, and the nonsuit was properly overruled. The second instruction, although good law in the abstract, was not applicable to the case, but was harmless, as the defendant was responsible for the negligent acts of Haskins, at any rate.

7. There was another instruction given which is complained of, by which the jury were told, in effect, that it is the duty of the master to inform the servant of any sudden danger of which he has knowledge or should be informed, but of which the servant is ignorant, and that the employe might rely on the warning and signals usually given in the conduct of the business, and, if the master fails to give these, he is negligent. This was given apparently in view of the testimony that it was usual to notify the linemen when any rush work was to be done before the lights were turned on. This duty was also personal to the master, and he was charged with the exercise of reasonable foresight and precaution to see that intelligence of such danger was conveyed to the workmen, and an omission to give the usual warnings and signals previously employed in the conduct of the business under like circumstances would be negligence on the part of the master. The giving of this instruction was not error.

8. There was an exception to the testimony of young Moon, showing that, in the year previous to the accident, Brown customarily used the telephone in notifying parties in charge of the power house when employes were at work upon the lines, or else 'he went in person. The objection is based upon the idea that no such custom was pleaded, and that the testimony was too remote in point of time to show that it was still customary' at the time of the accident for Broyvn to notify the power house by telephone in such an emergency. The allegations of the complaint were broad enough to admit the evidence, as well as to support the verdict, and the time fixed by the witness when the custom was in vogue was not so remote as to destroy any tendency of the evidence to show that it continued to exist.

9. Another objection is also urged to the testimony of Dr. Moore in reply to some hypothetical questions put to him as an expert, upon the ground that he was not shown to be qualified to testify in that capacity. Without discussing the matter at large, suffice it to say that, if such qualification was not sufficiently shown when the questions were propounded, the cross-examination of the witness relieved the case of any complication on that account, as his competency to testify as an expert in the premises was fairly disclosed thereby, and the objection is therefore not well taken.

10. There was a motion to set aside the verdict and for a new trial, based upon the circumstance that the jury, after being instructed and having the case submitted to them, returned to the court room and inquired which would be responsible, the old or the new company, if they should find negligence, and were answered that the court knew of but one company, — the defendant’s. The jury again inquired, saying: “You know that some time ago the old company sold its interest to the new company, and we desire to know who would be responsible, — the old or the new.” The court again answered, saying: “There is no evidence of any other than the present, — the defendant.” The jury thereupon again retired, and, after further deliberation, returned with their verdict. The appellant draws an inference from this circumstance that the jury found against the present company because its members were residents of Portland, and that if they had resided in Grants Pass the verdict would have been otherwise'; and, based thereon, counsel insists that it should be set aside. What the jury’s motives were in making the inquiry does not further appear, but the court properly told them that there was but one defendant liable in the premises, namely, the one before the court, and the inference suggested is so remote and inconsequential that it could hardly be imputed to a jury acting under the sanction of an oath.

Having disposed of all the matters in controversy, and being favorable to respondent, the judgment is affirmed.

Affirmed.