Western Union Telegraph Co. v. State ex rel. Nelson

33 A. 763, 82 Md. 293, 1896 Md. LEXIS 18

• Court: Court of Appeals of Maryland
• Decided: January 8, 1896
• Status: Published

Opinion

Page, J.,

delivered the opinion of the Court.

This action was brought against the “ Western Union Telegraph Company,” and “ The City and Suburban Railway Company,” to recover damages for the alleged neglect of the defendants, whereby one Michael Nelson lost his life.

In the narr. and summons the Telegraph Company is referred to as “ The Western Union Telegraph Company,” but in the bill of particulars, filed with the narr., the-words ■“a corporation of the State of New York,” are appended to the corporate name. The summons was served on Richard Bloxham, “ its manager.” During the trial, it appeared from the evidence that there are two companies ; one, whose corporate name is “ The Western Union Telegraph Company,” a corporation of the State of New York, and another whose corporate name is “ The Western Union Telegraph Company of Baltimore City,” a corporation of the State of Maryland. Richatd Bloxham (on whom the writ was served), is the general manager of the former in this State, and the president and manager of the latter. The evidence established the facts, that the pole on which the fatal wire was suspended, is the property of the Maryland corporation, and that the New York Company neither owned nor controlled poles in that vicinity. Thereupon, the counsel for the plaintiff asked leave to amend the declaration and bill of particulars to conform to the proof, and stated, at the time, that the Maryland •Company was the one intended to be sued and it was only because of his want of knowledge as to the correct name of the corporation, that the words “ of Baltimore City,” had been omitted. There being no objection, the leave was granted and the amendment made. Mr. Cross, who was the counsel for the defendants, then had his appearance entered for the Western Union Telegraph 'Company of Baltimore City, and filed the three following pleas, viz.: ist. The plea of limitations. 2nd. That the cause of action did not accrue within twelve months “ before the filing of the plaintiff’s amended declaration, by which it was made a party to the suitand 3rd. The general issue plea. The plaintiff, having joined issue on the first and third of these pleas, moved to strike out the second; and the action of the Court in granting this motion constitutes the defendant’s second exception.

It is contended on behalf of the Telegraph Company, that by the amendment a new party was made and was, in fact, so far as it was concerned, the equivalent of bringing a new suit; and therefore a plea which averred that the cause of action did not accrue within twelve months before the filing of the amended declaration, did not improperly set out that provision of the Code, which provides that actions like the present must be commenced within twelve months after the death of the deceased person. Code, Art. 67, sec. 3. But to this we cannot agree. The 36th sec. of Article 75 of the Code provides that no action shall abate by reason-of the misnomer of a defendant, but the Court, at its discretion on suggestion, &c., or other proof to the satisfaction of the Court, that “ by mistake the plaintiff has sued in a wrong name or that the party summoned in virtue of said writ or action is in fact the party intended to be sued by such writ or in such action may at any time before judgment, direct the writ or any of the proceedings to be amended by inserting therein the true name” of any defendant. In this case, the summons was served on a person who was an officer of both companies, and upon him as manager of the defendant corporation. He was in fact the manager of both. The service was efficient to bring into Court either one of the companies. Under the circumstances it might well happen that an attorney who was closely connected with both, and knew the very slight differences in the two corporate names, might fall into error as to which company was intended to be sued, but if he did, his mistake could not operate ■ to deprive the plaintiff of his right, when he discovered there were two companies with names so nearly alike, of designating which of the two he was sueing. When, therefore, the suggestion of misnomer was made, with the statement that it was the Maryland corporation which was intended to be sued and the-Court, in its discretion, ordered the amendment to be made,, not for the purpose of adding a new party, but to correct, the name of a party actually summoned, the defendant could1 thereby acquire no right to interpose any other or different plea than it would have had if it had been correctly named in the first instance. If, upon the amendment being made, the ends of justice required further time, to enable the defendant properly to prepare its case, the Court had full power to order a continuance. It does not appear, however, ever, that the counsel for the defendant asked for or desired delay. He could not have been surprised. The narr. disclosed that the negligence complained of, was in connection with a wire on Eastern avenue near Luzerne street, and Bloxham, who was manager of both companies, knew, or ought to have known, that the telegraph poles and wires in that locality were owned or controlled by the Maryland Company, and that the New York Company had none in that vicinity. He therefore must have known that it was the Maryland Company that was intended to be sued, and it did not require much mental acuteness to enable him to understand that the misnomer occurred by reason of the very slight difference in the two names. It is plain that the error of the plaintiff’s attorney was due to the fact that he did not know that the company he intended to sue had the words “ of Baltimore City ” as a part of its name, and as soon as he became better informed he so stated to the Court and prayed the amendment. To hold, under such circumstances, that the amendment brought in a new party and thereby enabled it to plead limitations, to be computed from the filing of the amended declaration and not from the commencement of the action, would be a gross injustice to the plaintiff.

It follows from what has been said that we find no error in the second and fourth exceptions, or in the rejection by the Court of the second and third prayers of the Telegraph Company. By the fourth exception it appears that the defendants were not permitted to offer in evidence the charter of the New York Company. But it was not a party to the suit and the contents of its charter were wholly irrelevant to any of the issues before the Court or jury.

The first exception was not referred to in argument and we understand was abandoned. The remaining exceptions present for our consideration the several instructions granted and rejected by the Court, and this renders necessary a statement of the main facts of the case.

On August 24th, 1893, Michael Nelson, a child of eleven years, while walking on Eastern avenue near Luzerne street, came in contact with a telephone wire which hung from a pole owned and controlled by the Western Union Telegraph Company of Baltimore City. Along that part of Eastern avenue the City and Suburban Railway Company operates one of its lines of electric railway. Its iron poles are placed at intervals along the curb line, arid carry wires strung across the street to support the trolley wire in the middle of the street. Besides these, they also support the railway’s feed wires, which stretch from pole to pole along the street, over the curb line and parallel to it. The function of these feed wires is to supply electricity to the trolley wire, so that the potential of that wire may be always constant, and when the road is being operated they carry a voltage of about 500 volts, sufficient to produce upon any one receiving it serious injuiy or death. By means of a preparation of braided cotton, saturated with insulating material and covered with a water-proof compound, feed wires are kept insulated, so that when the insulation is properly done and in good condition, there can be no escape of electricity. If exposed, however, long to atmospheric influence it becomes depreciated and will not serve its purpose. Defects are also sometimes to be attributed to improper handling of the wire in the process of construction so that the covering becomes broken. The frictional contact of another wire rubbing against it would cause serious damage to the insulation and in such a case the current would commence to be carried off before the insulation was “probably absolutely worn through.” If imperfect insulation were due to such rubbing, so that the charged wire was laid bare or so worn as that the current found a path to the over-hanging wire, there would be 'no sparks at the point of contact, unless there was an “ arcing or air space” between the two. The defendant offered evidence tending to show that the particular feed wire was erected in 1893. It was not contended that the insulating material was not of the best or that it was not originally put up in a proper manner. The defendants also offered evidence to show that at the time of the accident the insulating material was intact at the place where the telephone wire rested on it. It was shown the swinging wire did not belong to the Telegraph Company, but was suspended from a bracket or lug on one of its poles. It was erected with the permission of the company by a'gentleman for his private uses. It had long been unused, but was permitted by the company to remain, a dead wire, on the poles where it was first placed. In some manner it parted and one of the ends suspended from the lug passed over or around the feed wire and extended to the pavement, where it swayed to and fro in the wind. In this position it remained for at least two weeks. At first it seems not to have been charged with electricity, for a policeman at sometime during that period gathered up the swinging end and placed it in a tree-box near by, so as to get it out of the way of persons passing along the street. The unbroken portion of the wire passed along for some distance into the city, but, further than to show there was no contact with other wires for two squares, there was no evidence tending to prove that it received its deadly charge elsewhere than at the place where it crossed the feed wire. It is not contended that Nelson was guilty of contributory negligence. How he came in contact with the wire does not clearly appear. Some of the witnesses thought it was blown against him by the wind. However that may be, it passed between his fingers and as he recoiled from the shock he drew it about his neck and throat. He was badly'burned; in a few days lockjaw set in and he died.

At the conclusion of the plaintiff’s testimony the Court was asked by the defendants to instruct the jury that there was no legally sufficient evidence to show that the death of Nelson was caused by the negligence of the defendants, or either of them, and this the Court refused to do. To entitle the plaintiff to recover it was requisite that the proof should establish some duty on the part of the defendants in respect to the person injured, and that the injury was occasioned by reason of the failure of the defendants to perform that duty. This principle is stated in Maenner v. Carroll, 46 Md. 212, as follows: “ To constitute a good cause of action, in a case of this nature, there should be stated a right on the part of the plaintiff, a duty on the part of the defendant in respect to that right and a breach of that duty by the defendant, whereby the plaintiff suffered injury.” Now the deceased at the time of the injury was upon a public highway, at a spot where he had a right to be, and was going along it to his home in a lawful and proper manner. The sidewalks of the streets in a city are for the use of all persons who have occasion to pass along them, and Nelson, while in the exercise of this unquestioned right, was entitled to be protected and safe from all injury on account of dangerous obstructions. On the other hand, 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 also 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. The privileges so granted, thus to encumber the public highway with appliances so likely to become dangerous to the public safety unless properly employed and controlled, imposed upon them, and each of them, the duty of so managing their affairs as not to injure persons lawfully on the streets. 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. It follows from this, that if the property of the defendants was not in proper condition and by reason thereof Nelson was injured, these facts alone, in the absence of other evidence to show that the defect originated without the fault of the companies, afford a prima facie presumption of negligence. In such a case the doctrine of “res ipsa loquitur'’ (“a simple question of common sense,” Whittaker's Smith on Neg. 423), fairly applies. In the leading case of Kearney v. The London, &c., Railway Co., L. R. 5 Q. B. 411, affirmed in the Exchequer chamber, L. R. 6 Q. B. 759, and cited approvingly in Howser’s case, 80 Md. 148, Cockburn, C. J., said: “Where it is the duty of persons to do their best to keep premises or a structure in a proper condition, and we find it out of condition, and an accident happens therefrom, it is incumbent upon them to show that they used that reasonable care and diligence, which they were bound to use, and the absence of which, it seems to me, may fairly be presumed from the fact that there was the defect from which the accident has arisen.” In Byrne v. Boadle, 2 Hurl. & Colt, 722, also cited in Howser’s case, the plaintiff while walking in the street, was injured by a barrel falling from an upper window of a warehouse belonging to the defendant, and on these facts alone, it was held, there was evidence of negligence to go to the jury. In Thomas v. W. U. T. Co., 100 Mass. 156, where two horses, driven along the highway, became entangled in a telegraph wire, swinging across a public way at such an height as to obstruct and endanger ordinary travel, it was held these facts alone, unexplained and unaccounted for, were evidence of neglect on the part of the company, and should have been submitted to the jury. Haynes v. Raleigh Gas Co., 19 S. E. Rep. 344; 114 N. C. 203; Uggla v. West End St. Ry., 160 Mass. 353; 2 Thompson on Neg. 1220, et seq.; Thompson on Electricity, sec. 178; S. W. Tel. Co. v. Robinson, 50 Fed. Rep. 813; Trans. Co. v. W. U. T. Co., 8 Benedicts Dist. C. (N. Y.) 502; W. U. Tel. Co. v. Eyser, 2 Col. 163; Blanchard v. U. U. Tel. Co., 60 N. Y. 510; Wolf v. Erie Tel. Co., 33 Fed. Rep. 322.

Was there evidence before the jury when these instructions were asked, from which they could find that the property of the defendants was out of proper condition at the time of the accident, and that by reason thereof Nelson was injured? There was evidence that the telephone wire had been hanging over the feed-wire for at least two weeks ; that in that position it was swayed by the wind, causing it to rub against the insulating material; that such rubbing for two weeks would cause a very serious damage to the insulation. No information had been given to the jury, of any means by which the telephone wire was charged, otherwise than from the feed-wire; and that could have been possible only by defect in the insulation. This was assuredly evidence tending to prove that the telephone wire was charged through the feed wire. Whether sufficient or not, to establish it as a fact, was for the jury to determine. It was within the province of the defendants to rebut the plaintiff’s case in any manner they were able; to show that the insulation was perfect; or if that could not be done, that the defect was caused by circumstances over which they had no control; or that it existed for so short a time that they could not be reasonably expected to have been informed of it, and thereby have had an opportunity to mend it. To raise the presumption of negligence in this case, however it was not necessary for the plaintiff to negative all possible circumstances, which could excuse the defendants. If the jury were informed of but one point, where the telephone wire was in contact with a live wire, it would not be a wild speculation for them to infer in view of all the circumstances and in the absence of any evidence of contact elsewhere with the feed-wire, or with other live wires ; that that was the source from whence the electricity came, although it may have been a physical possibility that there might have been such contact with other wires further along the line. This, the defendants might have shown, if they could, by way of defence, but in the absence of all evidence on the point, the jury could infer without violence, that the electrical charge was in fact obtained by contact of the telephone wire with the feed-wire. We find no error in the rejection of the instructions set out in the third exception.

(Decided January 8th, 1896.)

We deem it unnecessary to refer particularly to the action of the Court in granting or rejecting prayers in the case — what we have said is sufficient to dispose of them. We are of opinion the case was fairly put to the jury. Finding no error in the rulings of the Court, the judgment will be affirmed.

Judgment affirmed.