Ziehm v. United Electric Light & Power Co. ( 1906 )

This action was brought by the plaintiff to recover damages for personal injuries sustained by the alleged negligence of the defendant, the United Electric Light and Power Company of Baltimore.

The declaration contains four counts. The first three charge negligence in the construction and maintenance of certain electric wires operated by the company in the town of Pikesville, near the Reisterstown road, in Baltimore County. The fourth charges negligence in permitting these wires to be and remain in a dangerous condition, exposed to contact with persons lawfully upon a telephone pole near its wires.

The Court below at the conclusion of the testimony on behalf of the plaintiff instructed the jury, that according to the undisputed evidence in the case the plaintiff directly contributed by his own negligence to the injuries he received. The plaintiff excepted to the granting of this prayer, and the questions for our consideration are presented, on this exception and on rulings of the Court, as to the admissibility of testimony, during the trial.

At the time of the accident, the plaintiff was employed by the Maryland Telephone Company as a lineman to test the line and to answer what is known as "trouble calls" on the line.

On July 31st, 1902, he received a call and notice, to go to Pikesville to locate and ascertain "a trouble" on the line. When he reached the place of the accident he found it necessary in order to locate the trouble to ascend what is called "the distributing pole," with a cable box at the top. He ascended by means of iron spikes driven on the side of the pole, as steps, from the ground to the cable box, a distance of fifty feet. In going up he had to pass three electric wires of the appellee in close proximity to the pole, between the ground and the cable box. The first wire was about three inches from the pole; the second about twenty-five inches and the third about fifty inches. He ascended the pole without injury between the first and second wires and located the trouble at the cable box. In descending his left hand came in contact with one of the wires, charged with 2,080 volts of electricity, he became unconscious and fell a distance of twenty feet to the ground and was injured.

He testified "I was coming down, I had my left hand on the step and my right foot on the step; I was to lower myself to get on the step below, and as I took my hand off to lower myself, the wire swung either by the wind or the repair car coming down the road. The car got these wires vibrating and they struck me. I remember no more."

There was evidence that the appellee's wires were not properly placed and the wire, which struck the appellant's hand, as he descended the pole, was not properly insulated.

The main question, presented by the exception to the prayer, is, were the facts and circumstances of the case so patent and plain as to have authorized the Court in pronouncing them contributory negligence in law and in withdrawing the case from the consideration of the jury.

The law controlling this class of cases has been settled by numerous decisions of this Court. It is this, where the facts are undisputed or where but one reasonable inference can be drawn from them, the question is one of law for the Court, but where the facts are left by the evidence in dispute or where fair minds might draw different conclusions, the case should go to the jury.

The plaintiff, in this case, was in the exercise of a duty that required him to ascend and descend the distributing pole and the appellee owed him a clear, legal duty, to have its wires so placed and insulated as to permit him to perform this work, in safety and without danger. In Brown v. Edison Elec. Co.,90 Md. 406, it is said, as applied to the management by the appellee of its wires charged with high-tension current the legal duty would require it to see that its wires, when strung where persons were liable to come in contact with them, were properly placed with reference to the safety of such persons and were properly insulated.

In the present case, the plaintiff ascended the pole to the cable box in safety and finished his work. In descending, his hands came in contact with a high-tension wire of the appellee, which he had passed in safety in going up, but which had become suddenly detached from the pole while he was making the descent. According to his evidence, "as I took my hands off to lower myself the wire swung, either by the wind, or a passing car, and it struck me." He became unconscious and fell a distance of twenty to thirty feet, and was injured. The testimony in the case, also shows that the insulation of the high-tension wire, at the time of the accident, was defective, and this defect could not have been seen by the plaintiff as he ascended or descended the pole. According to the testimony on the part of the plaintiff, the injury would not have occurred if the wire of the appellee had been properly insulated or properly placed.

We are of the opinion that the question of due care or negligence on the part of the plaintiff, under all the facts of this case, was one for the jury, and the Court committed an error in withdrawing the case from its consideration, in granting the defendant's prayer, which said, that the appellant was, as a matter of law, guilty of contributory negligence.

The ruling on the first exception was correct. The change of the location of the wires after the accident, could not affect the responsibility of the appellee, at the date of the accident.Columbia v. Hawthorne, 144 U.S. 405; Balto. Yorktown v.Crowther, 63 Md. 558; Wood v. Heiges, 83 Md. 271.

There was no error in the rulings of the Court on the second, third and fourth exceptions. They all relate to the refusal of the Court to permit the witness Macodrom to testify as to the insulation of other wires, than those in use by the appellee company.

There was no proper foundation laid for the propounding of these questions and the Court was correct in refusing to permit the witness to answer them. Wood v. Heiges, 83 Md. 271;Crowther's case, 63 Md. 569; B. O.R.R. v. Thompson,10 Md. 76; Electric Light Co. v. Lusby, 100 Md. 634.

Being of opinion, the case was improperly withdrawn from the jury, by the granting of the defendant's prayer, as herein indicated, the judgment will be reversed and a new trial awarded.

Judgment reversed, and a new trial awarded, with costs.