Fitzgerald v. Edison Electric Illuminating Co. , 200 Pa. 540 ( 1901 )

Opinion by

Mr. Justice Mitchell,

Wires charged with an electric current may be harmless, or • they may be in the highest degree dangerous. The difference in this respect is not apparent to ordinary observation, and the public, therefore, while presumed_to know that danger may be present, are not bound to know its degree in any particular case. The company, however, which uses such a dangerous agent is bound not only to know the extent of the danger, but to use the very highest degree of care practicable to avoid injury to every one who may be lawfully in proximity to its wires and liable to come accidentally or otherwise in contact with them. The defendant, in accord with the common practice of electric companies, recognized this obligation by insulating its dangerous wire.

But the duty is not only to make the wire safe by proper insulation, but to keep it so by constant oversight and repair. Appellant at the trial offered to show that this had not been done, that the insulation had been defective for several weeks as had been shown by the wire “ spitting fire ” when blown against the comer of the roof. This testimony was excluded, and in that there was error. The case in this aspect is analogous to an action against a municipial corporation for injury from a defective highway. The plaintiff is not bound to show direct and express notice of the defect, but may show that it has existed for such a period that it ought to have been known to the authorities. And this raises a question for the jury. The excluded testimony in the present case was relevant and material on the question of the defendant’s negligence in that respect and as such should have been admitted.

It was not error, however, to exclude the testimony that the wires had been put there without the consent or against the protest of the lessee or owner of the house. In an action by such lessee or owner for injury by fire or otherwise to the house, the trespass might be admissible, but in the present action it was irrelevant. The wire being there, the question as between the defendant and the plaintiff, was whether there was negligence in not keeping it in proper repair.

The nonsuit, however, seems to have been entered on the ground of contributory negligence of the decedent. He was lawfully upon the roof in the exercise of his business. It is said that there was no evidence that it was necessary for him to go on the roof to do the painting. No such evidence was required. His convenience was reason enough. It was convenient for him to get at the cornice in that way and he had a right to do so. He found the wires in his way, and proceeded to prop them up so that he could work under them. Whether the means he took were such as a prudent man should have taken is not so clear that it can be determined by the court. If the weight of the wire when it fell on him had been such as to knock him into the street, that would have been so clearly his own negligence that the court could have said so as matter of law. But though he was bound to know in general the dangerous nature of such wires, and to use proportionate care in interfering with them, he was also entitled to presume, from the general custom, that they were properly insulated, unless the defect in their covering was visible to such examination as he ought to have made. All these considerations entered into the question of his negligence, and made it one for the jury.

The case of Smith v. East End Electric Light Co., 198 Pa. 19, relied on by appellee differed entirely from the present in the absence of evidence of notice to the company of the defect. The testimony which should have been admitted here was sufficient to send that question to the jury.

Judgment reversed and procedendo awarded.