Walter v. Baltimore Electric Co. ( 1909 )

The question presented by this appeal is a narrow one. It is whether the fact, that a wire of an electric lighting company strung over the public street of a city fell upon and injured a person passing along the street, of itself affords sufficientprima facie proof of negligence on the part of the company to cast upon it the burden of overcoming that presumption.

There is evidence in the record, which for the purpose of this inquiry must be taken to be true, that as the equitable plaintiff, a boy eight years old, was passing along Harford Avenue, a public street of Baltimore City, he swung himself around a pole standing in the pavement, when he came in contact with a hanging wire charged with electricity and badly burned his head and his hand. The evidence does not show the existence of any sudden or unforeseen cause for the falling of the wire, nor show with certainty whether it fell before or at the time of its coming in contact with the boy. He brought this suit for damages for his injury against the appellee and two other companies, all of whom were declared against as owners of the wire, but the appellee admitted at the trial below that it was the owner of, and controlled, the wire, and the case was not pushed against the other defendants.

At the trial in the Court below the case was taken from the jury at the close of the plaintiff's evidence, by the granting of the defendants' prayer, for want of legally sufficient evidence to warrant a recovery. From the judgment for the defendant resulting from that ruling the plaintiff appealed.

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 highways 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. W.U. Tel. Co. v. State,use Nelson, 82 Md. 293; Brown v. Edison Electric Co.,90 Md. 400; Newark Elec. Light P. Co. v. Ruddy, 62 N.J.L. 505;Sub. Elec. Ry. Co. v. Nugent, 32 L.R.A. 700; Postal Tel.Co. v. Jones, 133 Ala. 217; Phelan v. Louisville Elec. L.Co., 91 S.W. 703; Wittleder v. Cit. Elec. S. Co., 50 N Y App. 478.

It has been held in different cases that electric companies are not insurers of the public using the streets over which their wires are strung on poles and are therefore not liable for all injuries resulting from contact with their wires irrespective of the circumstances under which they occur. What they are liable for is the exercise of that degree of care which the law imposes upon them in view of the dangerous character of their wires and the rights of the public in the highways over which they are suspended. In Nelson's Case, supra, we said, in defining the measure of responsibility of the defendant companies to the plaintiff in the use by him of a highway over which their wires were strung: "The privileges so granted (to the defendant companies) 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 cases the doctrine of res ipsa loquitur (`a simple question of common sense,' Whittaker's Smith on Neg. 423) fairly applies."

It is true that in Nelson's Case the wire which did the harm had been hanging down for about two weeks during at least a portion of which time it had been charged with a current of electricity, but in many adjudicated cases and text-books it has been held that the mere fact that a live electric wire falls down upon a public street over which it has been suspended and injures a person lawfully there, is prima facie evidence of negligence on the part of the owner of the wire. Newark E.L. P. Co. v.Ruddy, supra; Hebert v. Lake Chas. I.L. W. Co.,111 La. 522; Snyder v. Wheeling Elec. Co., 43 W. Va. 661; DenverCon. Elec. Co. v. Simpson, 21 Col. 371; Boyd v. PortlandGen. Elec. Co., 57 L.R.A. 619; Thomas v. W.U. Tel. Co.,100 Mass. 156; Jaggard on Torts, 864; 2 Cooley on Torts, 3rd Ed. 1426; Joyce on Electric Law, sec. 606; Elliott on Roads andStreets, sec. 826.

Some of these authorities rest the position taken by them upon the familiar doctrine asserted in Scott v. London St. R.Docks Co., 3 Hurlst. C. 596: "There must be reasonable evidence of negligence. But where the thing is shown to be under the management of the defendant or his servants and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence in the absence of explanation by the defendants that the accident arose from want of care." The same proposition was asserted in the well-known case of Byrne v.Boadle, 2 Hurlst. C. 722, which was relied on by us inNelson's Case, and was recognized by us in cases for injuries caused by a brick falling from a house abutting on a highway inMurray v. McShane, 52 Md. 217; Decola v. Cowan,102 Md. 551; Strasburger v. Vogel, 103 Md. 85; and in the case of crossties falling from a moving railway car on which they were being transported in Howser v. C. P.R.R. Co., 80 Md. 146. The exceedingly dangerous character of live electric wires lends force to the strict application of this rule of law to accidents occurring through contact with such wires when out of proper condition or of their proper place.

In view of the exceedingly dangerous character of electric light and power wires and the peril to which their suspension over the public streets exposes the public who constantly traverse and use the streets, we think it both just and reasonable to hold that the injury of a person upon the surface of the street by contact with a hanging or fallen wire of that character, in itself, if unexplained, affords sufficient primafacie evidence of negligence on the part of the owner of the wire to entitle the plaintiff to go to the jury in an action for damages for the injury.

In our opinion, the evidence offered by the appellant as plaintiff in the case before us was sufficient to raise such aprima facie presumption of negligence against the appellee company as to call for an explanation from it, and therefore sufficient to carry the case to the jury, and that the learned Judge below erred in granting the defendants' prayer. Of course, upon a retrial of the case, the company as defendant will be permitted to rebut the presumption of negligence and show by any lawful evidence, if it can do, that it has fully discharged its duty to the public in the erection and maintenance of its wires, and upon the merits of the case as it shall then be presented the jury can determine.

The judgment appealed from will be reversed and the cause remanded for a new trial.

Judgment reversed with costs and case remanded for new trial.