Hogge v. Salt Lake & O. Ry. Co. , 47 Utah 266 ( 1915 )

McCAETY, J.

(after stating the facts as above).

Counsel for appellant, with much earnestness, contend that it was never contemplated bys either the railway company or the light company that the contractors or their employees, in the performance of the work in removing a portion of the north wall of the railway company’s substation building, should or would go upon the roof of the building. The position of appellant in that regard is very clearly set forth by counsel in their printed brief as follows:

“Plaintiff’s intestate was the servant of a mere trespasser, an independent contractor, and he, as well as his employees, assumed tbe risks of whatever danger might be upon the premises and were compelled by law to take said premises as they found them at their risk.”

On the other hand, respondent contends that the deceased, Lawrence Hogge, was upon the premises — the roof of the substation building — as an invitee, and that appellant owed him the nondelegable duty of exercising ordinary care to keep the premises in a reasonably safe condition so that he would not be unnecessarily or unreasonably exposed to danger.

The court, among other things, charged the jury as follows (No. 9) :

1 “If you find from all the evidence ® ® that the defendant Salt Lake & Ogden Railway Company knew, or in the exercise of reasonable care and diligence should have known, that it might become necessary for workmen to go upon the roof of said substation in- the performance of said work, or that Avorkmen would be apt to be called upon or go upon the roof of said substation in the performance of said work, and thereby come in such close proximity to the said high-tension Avires that they Avould be apt to receive a dangerous current of electricity therefrom, and if you further find from all the evidence in this case that the deceased, Lawrence Hogge, Avas directed by said Jackson and Levedahl to go upon the said roof to do said work, and that the deceased, Lawrence Hogge, did not know of the dangers in coming in contact Avith or in close proximity to said high-tension Avires located upon the roof of said substation, and if you should further find from all of the evidence that the defendant Salt Lake & Ogden Railway Company maintained said high-tension wires uninsulated and unguarded while said work Avas being performed, and gave no warning to said Lawrence Hogge of the dangers that might arise to said Lawrence Hogge by coming in contact Avith or in close proximity to the said high-tension wires, and that the said deceased in the prosecution of said Avork or while going to or from his said work, while not knowing that it Avas dangerous to come in contact with or close proximity to the said high-tension wires, came in contact with, or in close proximity to the said high-tension wires and thereby received an electric shock from the said high-tension wires, from which he died, your verdict should be for the plaintiff. * * * The burden is upon the plaintiff, and it is for her to prove such facts by a .preponderance of the evidence before she is entitled to recover, * * * unless you should further find that the said Lawrence Hogge knew, or by the exercise. of ordinary care should have known, of the danger which might arise from coming in contact with or in close proximity to said high-tension wires, or unless you should further find that the said Lawrence Hogge was guilty of contributory negligence. 1 ’

This instruction is assigned as error. It is contended that the giving of it made the railway company “the absolute insurer of any workmen7' engaged in remodeling the wall, who might be required to go upon the roof. - The instruction should be read and considered in connection with the balance of the charge.

The court charged the jury as follows:

“You are instructed that the defendant railway company' was not an insurer of the safety of said deceased,, and that the duty of ordinary care devolves upon all persons, and at all trnq.es, and by such care is meant such care as 'an ordinarily •prudent and careful man would exercise under like circumstances and conditions.

“You are instructed that if the deceased knew, or by the exercise, of such reasonable care; as herein- defined, should have known, that said wires were carrying such heavy current of electricity and were dangerous, and that notwithstanding such knowledge, and without any reason therefor, he carelessly or negligently approached and touched the same or went into close proximity thereto,-and the injury resulted, then the plaintiff is not entitled to recover.

“You are therefore instructed that if the deceased failed to exercise such degree of care as an ordinarily prudent man would have exercised under like circumstances and conditions, and in doing the work required to be done, or failed to exercise such care in going to and from said work, then the said deceased was guilty of contributory negligence, and would not be entitled to recover in this action.”

We do not think that the instruction complained of when read and considered in connection with the foregoing portions of the charge, is susceptible of the construction contended for by counsel for appellant.

2 It is argued that as the deceased was working for, and under, an independent contractor, the railway company owed him no legal duty whatever to warn him of the danger of going upon the roof and in close proximity to the high-tension wires hereinbefore mentioned, and for that reason the instruction complained of is misleading and erroneous. We do not think there is any merit whatever to this contention. There can be question but what Levedahl & Jackson were independent contractors, and that the railway company exercised uo supervision or control over their employees who were engaged in tearing down and removing a portion of the north wall of the substation building. The records shows, however, that the remodeling of the wall was for the mutual benefit of the two companies. In the preamble of the contract, portions of which are set forth in the foregoing statement of facts, it is recited that:

“Whereas, it is mutually agreed and understood by and between the railway company and the light company, that it will be mutually advantageous to operate both of said substations with one set of operators; and, whereas, in order to do so it becomes necessary for the light company to build a substation building immediately adjoining the north wall of the railway company’s substation building and-that a portion of said north wall * * * be remodeled,” etc.

It may be inferred' — in fact, it is the only reasonable con-illusion that can be drawn from the evidence — that the contract contains the terms and conditions under which the work of remodeling the wall was commenced and carried on. Under the contractual relations thus created, the light company and its contractors and employees were authorized to go upon the premises of the railway company for the purpose of remodeling the wall, and, in so doing, they were not trespassers, as counsel for appellant seem to contend. True, the remodeling of the wall was to be done, and the expense thereof borne, by •.the light company. This, however, did not relieve the railway company of its duty, which, was nondelegable, to warn the contractors and their employees of the danger of coming in contact with, or in close proximity to, the. high-tension wires that were in the immediate vicinity of the place where the work of remodeling the wall was to be carried on.

In 1 Thompson on Negligence, section 680, the author says:

“The relation of master and servant does not subsist between the proprietor and the servant of the contractor; and therefore those obligations which the law imposes upon the master for the, protection of one injured while in his service do not rest upon the proprietor, but' upon the contractor. On the other hand, the servant of the contractor must be deemed to be upon the premises of the proprietor by his invitation, express or implied; and therefore he owes him the same duty of guarding him against the consequences of hidden dangers on the premises that the proprietor would in any case owe to a guest, a customer, or other person coming by invitátion upon his premises.”

And again (section 979) :

“It is not necessary to suggest that, where a proprietor engages an independent contractor to do work upon his premises, the contractor, while executing the work, will be there in pursuance of the invitation of the proprietor and the proprietor will * * * be under the duty of exercising ordinary or reasonable care to the end of protecting his safety. In almost every such case there is the further implication that if a contractor brings third persons, his own employees, his partners or assistants to assist him in executing the contract, such persons are presumably upon the premises by the invitation of the owner and he owes to them the same measure of care to the end of promoting their safety that he owes to the contractor himself; and this although no contractual relation exists between the proprietor and them.”

In Beacb on Contributory Negligence, section 50, the rule is stated thus:

“When * * 'J: the circumstances are such as to imply an invitation to go upon property, he who enters is no longer a trespasser, and the owner is bound to exercise ordinary care and prudence toward him. The invitation or license, express or implied, creates this duty.” Stevens v. United Gas & E. Co., 73 N. H. 159, 60 Atl. 848, 70 L. R. A. 119; Spry Lumber Co. v. Duggan, 182 Ill. 219, 54 N. E. 1002; Gagnon v. St. Maries Light & Power Co., 26 Idaho, 87, 141 Pac. 88; 29 Cyc. 453.

3 It is. contended that appellant had no notice that the contractors and their employees would, in remodeling the wall, go upon the roof of the substation building, and hence was under no legal duty to place danger signs or signals on the roof, or to otherwise warn them of the danger of coming in contact with, or in close proximity to, the uninsulated high-tension transmission wires mentioned. The president of the railway company, who was also a stockholder of the light company, testified that he “knew it (the work) was to be done.” Furthermore, appellant was a party to the understanding or agreement under which the work of remodeling the wall was to be performed. Appellant therefore had notice that the work would be done. The evidence, what there is on the point, tends to show that the most practical and economical way of remodeling the wall was the one that was being followed at the time the accident occurred. The jury therefore were justified in finding that prior to the accident appellant “knew, or in the exercise of reasonable care and diligence should have known, that it might become necessary for workmen to go upon the roof of said substation in the performance of said work.” This is one of the several propositions submitted to the jury by the instruction complained of.

It is settled law that parties who maintain electric wires carrying high and dangerous currents of electricity are bound to exercise the necessary care and prudence to prevent injury to others who may have the right to be on the premises where the wires are maintained and who are liable to come in contact with the hidden, silent, and deadly current with tvhich the wires are charged. Joyce on Electric Law, section 445; Perham v. Portland Gen. Elec. Co., 33 Or. 451, 53 Pac. 14, 24, 40 L. R. A. 799, 72 Am. St. Rep. 730 ; Swan v. Salt Lake & O. Ry. Co., 41 Utah, 518, 127 Pac. 267. In 2 M. A. L. 418, the rule is clearly, concisely, and, as we think, correctly stated as follows:

“Electricity is another impalpable and dangerous force, and those who make, sell, or handle it are held to the. use of the greatest care to avoid injuring those who must come and go where it is employed. Here again the rule is that care must be proportioned to the danger to he avoided.”

Applying this well-established principle to the facts of this case, we cannot hold as a matter of law, that appellant was not negligent.

4 Appellant requested the court to direct a verdict in its favor “no cause of action.” The refusal of the court to so instruct the jury is assigned as error. The contention made in support of this assignment is that the deceased was, as a matter of law, guilty of contributory negligence. The deceased, at the time of the accident, was twenty years of age, and while it may be inferred from the evidence that he knew or had reason to believe that the wires mentioned were charged with electricity, and that he, in a general way, knew of the danger of coming in contact with wires carrying heavy currents of electricity, there is no evidence whatever tending to show that he knew, or should have known, that these particular wires were carrying heavy currents. Lorenzo Jackson, the subcontractor under whom the deceased was working, testified that, while he (Jackson) “thought they were carrying electricity,” he “didn’t know the voltage.” As stated in Fitzgerald v. Edison Elec. Ill. Co., 200 Pa. 540, 50 Atl. 161, 86 Am. St. Rep. 732:

“Wires charged with an electric current may he 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.”

Practically the same observation is made — the same thought expressed — in the case of Mitchell v. Raleigh Elec. Co., 129 N. C. 166, 39 S. E. 801, 55 L. R. A. 398, 85 Am. St. Rep. 735, in the following words:

“Electricity * * * is the most deadly and dangerous power recognized as a necessary agency in developing our civilization and promoting our comfort and business affairs. It differs from all other dangerous utilities. Its association is with the most inoffensive and harmless piece of mechanism — if wire can be classified as such — in common use. In adhering to the wire, it gives no warning or knowledge of its deadly presence. Vision cannot detect it. ■ It is without color, motion, or body. Latently, and without sound, it exists, and, being odorless, the only means of its discovery lies in the sense of feeling, communicated through the touch, which as soon as done, becomes its victim.”

As hereinbefore stated, Roy Jackson, who was at work about midway between the northeast and northwest corner of the building, testified that when the deceased received the shock that caused his death he was about ten or twelve feet from where he (Jackson) was standing and about fifteen feet from the wall that was being remodeled; that it appeared to him that Hogge was “about two feet” from the insulator; that when Hogge received the shock he “stiffened and fell backwards.” J. H. Emmett, who, at the time of the accident, was about 200 feet north'from the substation building and saw what occurred from the street, testified that Hogge was “about three or four feet from the insulator when he received the shock”; that he immediately went to the scene of the accident and found Hogge lying on his back, his head towards the northeast corner of the building and his feet “about three feet from the insulator”; that he “got a stick and hooked it into his clothes and rolled” him away from the wire. Lorenzo Jackson, one of the contractors under and for whom Hoggs was working, testified that he returned to the roof of the building immediately after the accident occurred, and his testimony respecting the location of the deceased with reference to the high-tension wires from which he received the shock and the position' he was in is the same as 'that given by Roy Jackson. There is a conflict in the evidence as to the extent of the danger zone of uninsulated wires carrying 40,000 volts of electricity. Respondent’s evidence on this point tends to show that the danger zone extends about three feet from the wire. Appellant’s evidence tends to show that it is from one to three inches only. There is, however, ample evidence to support a finding by the jury that the deceased was from two to three feet from the wire when he received the deadly current that caused his death. • There is evidence to show, and the jury were authorized in finding, that the deceased was passing around or by Roy Jackson in the act of leaving the roof of the building, and that he was, as stated, from two to three feet from the wire when he received the shock. There is absolutely no evidence whatever tending to show that when he received the shock he was in close proximity to the wire “for recreation or for exploitation of idle curiosity or for experimenting to see whether or not the wires were insulated,” or was engaged in “meddling or foolhardy experiments,” as contended by counsel for appellant. The evidence of Emmett, which is corroborated by the testimony of Roy Jackson, tends to show that the deceased was in the act of leaving the roof of the building, and that he was not, as claimed by appellant, “experimenting” with the wires.

We are clearly of the opinion that the court did not err in refusing to direct a verdict for appellant on the alleged ground that ITogge was, as a matter of law, guilty of conrtibu-tory negligence. The court very fully and very clearly instructed the jury on that issue. The assignment of error based thereon is therefore overruled.

Numerous- other errors are assigned, but we do not think they, or any of them, contain sufficient merit to warrant discussion.

The judgment is affirmed. Costs to respondent.