Princeton Light & Power Co. v. Ballard

109 N.E. 405, 59 Ind. App. 345, 1915 Ind. App. LEXIS 209

• Court: Indiana Court of Appeals
• Decided: June 23, 1915
• Docket: No. 8,663
• Status: Published

Opinion

Ibach, P. J.

Action in tort by appellee , to recover damages for the death of. his decedent, alleged to have been caused by appellant’s neglect. The material allegations o£ the complaint are substantially as follows: 'That on October 27, 1904, appellant operated an electric lighting plant, and furnished and distributed electricity therefrom for lighting at the shops of the Southern Railway Company where Henry Rowe was then working- for that company; that appellant furnished and distributed electricity to such shops by means of two wires, one called a primary wire, and one called a secondary wire; that the primary wire then carried 2,200 volts of electricity to a transformer which reduced the voltage to 106 volts and carried the same to the secondary wire, and through it to the place where Henry Rowe was working in the shops, and where an electric wire was suspended from such secondary wire to make light for Henry Rowe while at work; that ITellry Rowe tried to turn the electricity from the secondary wire into an electric lamp which hung to such suspended wire, and there received into his body without any fault or negligence of his own 2,200 volts of electricity, because the primary and secondary wires crossed one another so that all the voltage from the primary wire was projected into his body, and appellant then knew and by the exercise of ordinary care could have known of the dangerous voltage passing then and there into such secondary wire; that Henry Rowe died of his injuries and left surviving him as his heirs his parents and brother, to whose support he was contributing at the time of his death.

The issues were closed by the filing of an answer of general denial and an affirmative answer which we need not consider, for it is admitted by appellant that the proof failed to support it. The cause was tried by a jury and a general verdict for appellee was returned, awarding damages in the sum of $1,000. Judgment was rendered on the verdict.

1. The reversal of the judgment is sought on the ground that the trial court erred in overruling appellant’s motion for a new trial. A number of specifications are assigned in the motion, but in view of our determination of the ease we need only consider the specifications which, have to do with the giving of certain instructions to the jury and a refusal to give others. The evidence in the case being conflieting, the appellee would be entitled to retain his judgment if there was no error in refusing to give instructions requested by appellant. See Gilbert v. Duluth Gen. Elec. Co. (1904), 93 Minn. 99, 100 N. W. 653, 106 Am. St. 430; Hebert v. Lake Charles Ice, etc., Co (1903), 111 La. 522, 35 South. 731, 100 Am. St. 505, 64 L. R. A. 101; Parsons v. Charleston, etc., Elec. Co. (1904), 69 S. C. 305, 48 S. E. 284, 104 Am. St. 800.

The theory of the complaint, manifest from all of its paragraphs, is that appellant owned and controlled the primary and secondary electric light wires which supplied electric light to the railroad shops from its plant and w'as negligent in allowing a portion of each to become uninsulated, and come in contact with each other, thus transferring the current of 2,200 volts to the wire intended only to carry 106 volts. A material issue thus presented, involved the control and supervision of the electric light wires within the grounds and premises of the railroad company.

2. 3. It seems to be settled law that where the furnisher of electricity supplies the same to a customer, , first through its own wires and then through the wires owned and maintained by such customer and over which the furnisher had no supervision or control, and an employe of the purchaser is injured by reason of the negligent manner in which the purchaser’s wires are equipped and maintained, the party who merely sells the current is not liable. 1 Joyce, Electricity (2d ed.) §445c; Fickeisen v. Wheeling Elec. Co. (1910), 67 W. Va. 335, 67 S. E. 788, 27 L. R. A. (N. S.) 893; Memphis, etc., Elec. Co. v. Speers (1904), 113 Tenn. 83, 81 S. W. 595; Minneapolis Gen. Elec. Co. v. Cronon (1908), 166 Fed. 651, 92 C. C. A. 345, 20 L. R. A. (N. S.) 816. There was a sharp conflict in the evidence as to whether the wires in the railroad company’s shops were controlled • and maintained by áppellant. There was some evidence that the Southern Railway Company alone owned and controlled all the wires alleged to have become defective, and had them under its immediate care and supervision at the time of decedent’s injury and for a long time prior thereto-, and that appellant had no right or authority to interfere with the manner in which such railroad company maintained its wires and had no right to inspect them and owed no duty to decedent or any other person to make any inspection of the wires complained of. Under this state of the evidence, appellant requested three instructions embracing the legal proposition here propounded, but the court refused to give them, and instructions diametrically opposite thereto were given at the request of appellee, covering- his theory of the ease. Instruction No. 19 requested by appellant, which is similar in all its essentials to instructions Nos. 18 and 25, also refused, is as follows: “If you find, from a preponderance of the evidence that the wires alleged in the complaint to have been crossed, upon each other were the property of the Southern Railway Company, and in possession of said railway company and in actual charge of an electrician employed by it and assigned to the duty of caring for the wires and other electrical appliances within the shop buildings and grounds of said railway company, and that it was no part of the duty of the defendant to keep in repair said wires alleged as aforesaid, to have been crossed aS aforesaid; then in that view of the case, the plaintiff can not recover in this action and your verdict should be for the defendant. ’ ’

In view of the fact that no other instructions covering the same propositions were given, one of the instructions tendered thereon by appellant should have been given, and it was prejudicial error to refuse to do so. Judgment reversed.

Note. — Reported in 109 N. E. 405. As to duties and liabilities of electrical corporations, see 100 Am. St. 515. As to liability of electric company for injury by wire strung by a third person to connect with, its system, see 39 L. R. A. (N. S.) 1046. As to duty of electric light company with respect to wiring or fixtures installed in private property, see 13 L. R. A. (N. S.) 226; 20 L. R. A. (N. S.) 816; L. R. A. 1015 C 570. See, also, under (1) 3 Cyc. 348; (2) 15 Cyc. 471; (3) 15 Cyc. 480.