Chesapeake & Potomac Telephone Co. v. State ( 1915 )

This suit was brought in the Superior Court of Baltimore City by the plaintiff, for the use of the widow and the infant child of Thomas J. Carey against the defendants, bodies corporate, to recover damages for his death caused by the alleged negligence of the defendants, while he was in their employment, as a telephone lineman. The plaintiff recovered a judgment of ten thousand dollars against both companies and the defendants have appealed.

The principal questions arising on the appeal are, whether the accident was caused by such negligence of the defendant corporations, as entitles the plaintiff to recover or whether there was such contributory negligence on the part of the deceased as to preclude a recovery.

These questions are directly presented for our consideration by the rulings of the Court, on the granted and rejected prayers set out in the record and in overruling the defendants special exception to the plaintiff's third prayer, which special exception was as follows: that there is no legally sufficient evidence to show that the death of Thomas J. Carey was due to any negligence on the part of these defendants.

There were three exceptions reserved in the course of the trial upon the admissibility of testimony and are presented by three bills of exception taken by the defendants. The fourth exception presents the rulings of the Court upon the prayers. The plaintiff's third and fifth prayers were granted and the first, second, fourth and sixth were rejected. The defendants' eight, ninth, tenth, eleventh, thirteenth, fourteenth and fifteenth prayers were granted and the others were refused.

The declaration in substance avers, that at the time of the accident on the 13th of May, 1912, the defendants jointly maintained, used and occupied for the purpose of the support of their wires and cables and a converter box and necessary mechanisms belonging thereto, a certain pole located in an alley in the rear at No. 130 Augusta avenue, in the City of Baltimore. That it was the duty of the defendants so to attach, insulate and maintain the wires and converter box so that the same should not be dangerous to life, but that they, in violation of their duty to the equitable plaintiffs' decedent, attached and maintained on the pole a defectively insulated converter box in so negligent and careless a manner that the defectively insulated converter box was in contact with an iron brace, which said brace supported a cross-arm of the pole, thereby causing the iron brace to be charged with an electric current dangerous to life. That while in the employ of the Telephone Company as a lineman, under the direction of the foreman of the company he ascended the pole for the purpose of changing wires belonging to that company, and while rightfully in position to do the work, and while using due care and caution, he came into contact with the iron brace, which, by the negligence and want of care of the defendants had become charged with an electric current dangerous to life, and received a charge of electricity from which he instantly or shortly thereafter died. That his death was occasioned by the negligence and default of the defendants in permitting the converter box to become and remain dangerous to the lives of workman lawfully using the pole, by reason of which default, wrongful act and negligence upon the part of the defendants these equitable plaintiffs, Elizabeth J. Carey and Helen Marie Carey, infant, have lost the services, society and companionship of their husband and father and sustained great injury and damages.

The pole upon which the wires were attached was owned and maintained by the telephone company, but was also occupied and used by the defendant, the Electric Light Company, for the purpose of its electric light wires.

At the time of the accident the deceased was employed by the Telephone Company as a lineman and was directed to go with the Loop foreman, to work on the pole, and to make certain changes on a subscriber's line. He ascended the pole, to trace out what is called a bridle wire, as far as the knee-bracket between the two cross-arms on the east side of the cable pole, that carried the service wires to supply the subscriber's telephone. While engaged in this work at this point, he was seated on the iron messenger on the south side of the pole near the brace connected with the transformer. After completing this work, he was told by the foreman Boylan to "Take a peep and go down." Carey reached up his hand to get hold of the brace to lift himself off the cable where he was sitting to help himself up, and as he did, as he touched this, he made a sound. Boylan seeing him in trouble, reached to grab him and in doing so, his shoulder went against the cable, and they were both knocked to the ground. Carey was killed, and Boylan broke his leg.

The evidence on the part of the plaintiff tended to prove that there was negligence in both the construction and maintenance of the pole.

The witness Russell, superintendent of inspectors for the Public Service Commission of the State, who visited the place of the accident shortly after its occurrence, testified: The construction on that pole, in the first place, the pole was too low for the amount of work that was on it. There was not room enough on the pole to carry the wires and transformer owing to its shortness, which was about a 25-foot pole, and two electric light cross-arms on it, besides the telephone wires running underneath, and to have given them proper clearance the pole ought to have been at least five feet higher; the construction on that pole was not of the standard character, for what reason I do not know; whoever did the construction work were dilatory or careless in doing it.

He further testified, that the defective construction was the direct cause of the iron brace being charged.

The witness Kingsbury, the Chief Electric Inspector of the City of Baltimore, testified that the electrical construction on the pole owned by the Telephone Company which was used as to the upper part of it by the Electric Company, was not a proper or safe one, and if it had been called to his attention, he would have taken some action as to the matter. He further stated, the transformer is dangerous; there is possibility of the case being charged or the transformer coils being punctured, or there are many ways by which the iron box that surrounds the coils can become charged from the coils; a transformer, if put on a pole should be placed as far from the pole as is possible to put it, and the iron braces should by all means be kept away from any of the metal parts of the transformer.

The grounds of defense in the case are, that the deceased was guilty of contributory negligence, precluding a recovery because, first, he grasped the iron brace from which he received the shock which caused his death, with his naked hand, while the contact of the iron brace with the transformer was plainly, obviously and palpably visible to him at the point where he was then sitting, knowledge of the danger of such contact being clearly chargeable to him under the evidence in this case; and second, he grasped the brace with his naked hand when, under the evidence, he should at the time have been using rubber gloves which his employer, the Chesapeake Potomac Telephone Company, had provided him with.

The questions of contributory negligence, under the facts of the case, we think, were left to the jury, by the instructions of the Court in as favorable a light, as could have been asked by the defendants.

In Roth v. Highways Commission, 115 Md. 469, it is said: "It is well settled that it is generally for the jury to determine from all the circumstances of the particular case, unless the act relied on to establish it is distinct, prominent and decisive, and one about which ordinary minds would not differ in declaring it to be negligent, and when the nature of the act relied on to show contributory negligence can only be determined by considering all the circumstances attending the transaction, it is within the province of the jury to characterize it."Heinz v. B. O.R.R. Co., 113 Md. 582; Cooke v. Balto.Traction Co., 80 Md. 551; Strauss v. U. Rwy. Co.,101 Md. 499; New Theatre Co. v. Hartlove, 123 Md. 86.

In our opinion, this case was properly submitted to the jury and falls within the rules established by a long line of decisions of this and other Courts cited herein. U. Rwy. v.Dean, 117 Md. 686; Baker v. Md. Coal Co., 84 Md. 19;Pikesville R.R. Co. v. Russell, 88 Md. 563; Barto v. IowaTel. Co., 126 Iowa 241; Electric Co. v. Rose, 214 Ill. 545;Brown v. Edison Co., 90 Md. 406; Ziehm v. Electric Co.,104 Md. 60; Con. Gas Co. v. Smith, 109 Md. 194; Dettering v. Levy, 114 Md. 275; Bartlett Co. v. State, 120 Md. 6; B. O.R.R. v. Baugh, 149 U.S. 368.

The plaintiffs' fourth and fifth granted prayers were in proper form, and have frequently been approved in this class of cases.

The defendants' rejected prayers and the special exception to the plaintiffs' third prayer were practically demurrers to the evidence and from what we have said, were properly refused. The law of the case, on the questions of negligence and contributory negligence, was fully submitted to the jury by the appellants' seven granted prayers, and the appellees' third prayer. The Court reporter will set out the plaintiffs' and defendants' granted prayers, in the report of the case.

The three exceptions to the rulings on the evidence present the identical question and can be considered as one. The same question was asked different witnesses and was allowed, over the objection of the defendants. The question was this: Q. "In ascending a pole is it customary and usual, unless some particular danger has been previously pointed out, to wear rubber gloves?"

The same question, it will be seen had previously been asked and answered by the witness Boylan, the Loop foreman, employed by the Telephone Company, without objection.

In Con. Gas Co. v. Smith, 109 Md. 202, a somewhat similar question was asked, and it was held not to be error. We there said, it can scarcely be doubted that if it had been asked whether it was customary or general with ordinarily careful and prudent linemen to use rubber gloves in doing such work, that the question would have been a proper one. As framed however, the question had in fact a wider scope, and afforded a better test of due care to the jury, referring as it did to the general custom of all men engaged in that character of work.

But assuming there was error, in the rulings on these questions, it does not appear that the defendants were injured thereby and therefore, we would not reverse for its admission, on these objections. There must be injury as well as error to authorize a reversal. Pratt v. Johnson, 6 Md. 397; UnitedRwy. v. Dean, 117 Md. 702; Dettering v. Levy, 114 Md. 279;Doggett v. Tatham, 116 Md. 152; Swindell v. Gilbert,100 Md. 399.

Finding no reversible error in the rulings of the Court, presented by the record, the judgment will be affirmed.

Judgment affirmed, with costs.