Hipple v. Edison Electric Illuminating Co. , 240 Pa. 91 ( 1913 )

Opinion by

Mr. Justice Brown,

In 1889 the defendant company erected a line of poles and wires on Norwegian street, in the Borough of Potts-ville, and eleven or twelve years later the United Telephone and Telegraph Company erected its poles and wires on the same street. In doing so it placed its poles between the wires of the defendant company and stretched its own wires above those of that company. George Hippie, the husband of the appellee, was an employee of the telephone company. On June 25, 1908, he was sent by it to repair its line of wires on Norwegian street, and it became necessary for him to climb up one of its poles, between the wires of the defendant company. It is an uncontradicted fact that, in so climbing, he received a shock from the electric current on one of the wires of the defendant company and, falling to the ground, was killed.

It is not disputed that the telephone company had lawfully erected its poles between the wires of the defendant company. The testimony on the part of the plaintiff tended clearly to show that the fall of the deceased was due to his coming in contact with an uninsulated part of one of the defendant company’s wires, and that it had had, for a long time, constructive notice of the condition of this wire. In view of this situation, the question of the negligence of the defendant as the proximate cause of the death of appellee’s husband was clearly for the jury. He was lawfully about his business when he was climbing tip one of the poles of his employer for the purpose of repairing its line of wires, and the defendant company, which had never questioned the right of the telephone company to maintain its line of poles and wires as they had been set twelve years before, was bound to know that, from time to time, its employees would do just what the deceased did, and, bound by such knowledge, the duty resting upon the defendant company was to use the very highest degree of care practicable to avoid injury to any one who might be lawfully in proximity to its wires and liable to get accidentally or otherwise in contact with them: Fitzgerald v. Edison Electric Illuminating Company, 200 Pa. 540; and, if the defendant was negligent in this respect, it is no defense that the company which had employed the deceased had not taken proper care to protect its employees from the negligence of the other company. The right of the appellee, without regard to the failure of her husband’s employer to perform a duty to him, is to hold the defendant liable, if its negligence was the. proximate cause of his death.

The contributory negligence of the deceased was also, under all the evidence, for the jury, and this question was submitted to them in a charge in which no reversible error is discoverable. We find nothing in the answers to the points which are the subjects of the first, second, third, fourth, sixth and seventh assignments, nor in the charge of the court, calling for the resubmission of the case to a jury, and all the assignments are, therefore, overruled.

Judgment affirmed.