Kyle v. Southern Electric Light & Power Co.

Opinion by

Mr. Justice McCollum,

The defendant’s employees while engaged in taking down a wooden electric light pole on Federal street in this city, on the 26th of May, 1893, lost control of it, and the result was that it fell upon and seriously injured the plaintiff, who was then but eleven years old. The case in hand relates to this occurrence, and it was brought to enforce the plaintiff’s claim that the negligence of the men intrusted with the work of taking down the pole was the proximate cause of the injury he received. The burden of showing the negligence óf which he complained was on him, and he introduced evidence to prove that the men engaged in taking down the pole failed to exercise the care required by the circumstances and that the appliances used in the performance of the work were inadequate. This evidence was met by evidence introduced by the defendant tending to show the observance of due care by its employees and the use of appliances commonly employed in such work. If the evidence submitted by the plaintiff considered by itself was sufficient to sustain his contention it presented a question which the court, notwithstanding the opposing evidence, was bound to submit to the jury.

The testimony respecting the size and weight of the pole showed that it was thirty-five feet in length and from twelve to fifteen inches in diameter, and that its weight was from twelve to fifteen hundred pounds. There was a decided conflict in the testimony in regard to the number of men engaged in lowering the pole at and immediately before the time it fell. The evidence on the part of the plaintiff showed that there were but three men employed in that most critical and perilous part of the work, and the evidence on the part of the defendant showed that there were eight men, including the foreman, present, and that as many of them were engaged in it as were required for the proper performance of it. There was some evidence in the case from which it might be reasonably inferred that the pole was crooked and that the danger in lowering it was increased thereby. One of the witnesses for the defendant said that “ there was a sort of a hump on the back of the pole ” and another one said, “ there seemed to be a kind of bend” in it. There was a general concurrence in the testimony to the effect that the pole turned while the men were in the act of lowering it, and that the turning of it was one of the causes of their failure to retain control of it. It appeared in the testimony of one of the defendant’s witnesses that there were other and safer methods of taking down, poles than the one employed in this case but that' they were not usually resorted to in taking down small poles. It also appeared in the evidence of another witness called by the defendant that there were two kinds of butting pikes used in taking down poles, one of them being composed entirely of wood in the form of the letter X, and the other consisting of a single pole with “ an iron fork at the top.” The latter was used in taking down the poles in question and because it had the iron fork and could be operated by one man, the witness considered it better than the former in the handling of which two men were required. The cross-examination of the plaintiff’s witnesses and the examination in chief of the defendant’s witnesses together with the unquestioned statement in the charge in relation to the argument addressed to the jury, unite in showing that the principal defense made on the trial was that the falling of the pole was attributable solely to the nature of the ground in which it was set, and if so that tíre defendant was not responsible for the consequences.

It is believed that the evidence we have summarized required the submission to the jury of the question whether the negligence of the defendant was the cause of the injury the plaintiff received by the falling of the pole. It was the duty of the defendant to furnish sufficient men and adequate appliances for the work of taking down the pole, and it was liable for the consequences of its failure to do so. If it discharged its duty in this respect it was still answerable for the consequences of the negligence of its employees in the performa2ice of the work. Whether it did discharge its duty in the premises, and whether its employees exercised the care required by the circumstances, were questions for the jury under proper instruction from the court.

Two of the specifications of error are based 021 rubmgs upon offers of evidence, one is founded upon the refusal to charge that “ the verdict should be for the defendant,” and thirteen relate to and complain of the instructions. The specifications which refer to rulings upon offers of evidence are overruled because the rulings complained of were changed on the trial and the witness was allowed to testify in accordance with the offers. The specification in regard to the refusal to charge that “ the verdict should be for the defendant ” is also overruled because as we have already seen there were questions of fact to be determined by the jury. .

The third, fourth, fifth, sixth, tenth, eleventh and twelfth specifications are founded upon quotations from the charge in which the attention of the jury was directed to matters proper for their consideration in passing upon the controlling question in the case. These matters we have already summarized and a detailed reference to them in this connection is not necessary. We discover nothing in the manner in which they were presented or in the comments upon them that can be fairly regarded as objectionable. In the extracts from the charge embraced in the seventh, eighth and ninth specifications the court referred to the butting pike used in taking down the pole as cheaper than another butting pike described by the defendant’s witness as in the form of the letter X, and to the block and tackle as a safer appliance than was used in this case. As it appeared in the testimony of Fitzpatrick that the butting pikes furnished by the defendant saved the cost of an extra man, and in the testimony of Dougherty that the block and tackle method gives the men full control of the pole from the time it starts until it reaches the ground, a reference in the charge to these matters was not improper.

A single sentence from the instructions in regard to damages is the subject of complaint in the thirteenth specification. We have often had occasion to characterize this method of attacking an instruction as unfair to the trial court, and to hold that the general effect of the charge, rather than a casual expression in it, must govern the interpretation or construction of it. Applying this rule to the case in hand the instruction in relation to damages furnishes no substantial ground for reversing the judgment. The jury were fairly limited to compensation for the pain suffered, and it cannot be justly said that there was anything in the instruction having a tendency to unduly enhance the damages.

The defendant has no substantial reason to complain of the answer to its fourth point, nor is there any reasonable ground for the claim that the charge as a whole tended to mislead and bias the jury.

The specifications are overruled and the judgment is affirmed.