Fitzgerald v. Edison Electric Illuminating Co.

Negligence—Electric light company—Defective insulation. Where a painter goes upon a roof in the lawful exercise of his business, and finds that in order to get at a cornice to paint it, he must prop up a number of electric wires which are in his way, and he does so by means of a board, and while under the wires at his work the board slips, and he is killed by a defectively insulated wire, and it appears that this insulation had been defective for several weeks and was caused by the sagging of the wire against the cornice, the question of the electric light company’s negligence and the plaintiffs contributory negligence is for the jury. Elliott v. Allegheny Light Co., 204 Pa. 568, distinguished. Negligence—Death—Parties—Widoiv—Executors and administrators. Where a widow has brought an action for damages for the death of her husband, in her own behalf and that of her only child, and pending the suit the widow dies, her administrator may properly be substituted as plaintiff. Appeals—Assignments of error—Evidence. Assignments of error relating to rulings on evidence are insufficient where there is no reference to the page of the paper-book where the matter referred to may be found in its regular order in the printed evidence.

Appeal, No. 257, Jan. T., 1902, by defendant, from judgment of C. P. Lancaster Co., Nov. T., 1895, No. 33, on verdict for plaintiff in case of F. M. Will, Administrator of Mary Bertba Fitzgerald, v. Edison Electric Illuminating Company. Trespass for the death of plaintiff’s husband. Before Landis, J. From the record it appeared that on March 21, 1900, plaintiff died and that F. M. Will, her administrator, was substituted as plaintiff in her place. The circumstances of the accident are stated in the previous report of the case in 200 Pa. 540. The court charged in part as follows: The proof presented by the defendant is that there were three wires; that the wire nearest the building was a wire for the arc lamps, and there was no power in this wire except at night, and that, in the day-time, it- was what was called a dead wire; that this wire was about one inch from the building, and that the next wire was away from the building about thirteen inches, and was a main feed wire for the alternating current, and that another wire, which was also a similar feed wire, was still farther away towards the west. It is, therefore, claimed that Fitzgerald could not have been injured by the wire which went over the corner or near the corner of the building and which he propped up, and that it must have been by one of the wires which were away from the building, and that he himself was in fault in coming in contact with that wire. This, then, raises the question of fact for you to determine, whether or not he was guilty of contributory negligence. There has been considerable dispute in regard to the poles which carried the three wires: One of them, all agree, was located near Hartman’s warehouse, at the corner of the alley which runs back of the railroad depot and meets North Christian street, and that from this pole, the lines extended diagonally to a pole on East Chestnut street. The position of this last mentioned pole is fixed at from thirty to sixty feet east of North Christian street, on East Chestnut street. The man was killed by one of these wifies. He was lawfully upon the roof in the exercise of his business. If it was convenient for him to get at the cornice in the way he did, he had a right to do so. If he found the wires in his way and proceeded to prop them up, so that he could work under them, he also had a right to do so, provided he did it in a proper way. Whether the means he took were such as a prudent man should have taken is a question for you to determine. If the weight of the wire which fell on him had been, of itself, such as to knock him into the street, and the electric current had nothing to do with it, that would have been clearly his own negligence; but though lie 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 an examination as he ought to have made. [But, if, while he was acting as a prudent man should have acted, the wire fell upon him, and to save himself he, without fault, grasped an uninsulated wire, which caused his death, he being in peril or thinking he was, and not having time nor opportunity properly to discriminate, he would not be guilty of contributory negligence on this account.] [7] How this accident happened is, however, under the facts proven, for this jury to ascertain. Defendant presented these points: If the jury believe, from all the evidence, that the wire which Fitzgerald propped up was a dead wire, and that the live wire which caused his death was thirteen inches clear of the building, and that the said live wire did not interfere with his painting; but that, after the wire which was propped fell, he caught the live wire with his hand, thereby causing his death, there can be no recovery in the case, and the verdict must be for the defendant. Answer: This point cannot be affirmed as stated. ■ We refer, for its answer, to our general charge, in which we have endeavored already to set forth the respective liabilities of the parties. [8] The present use plaintiff in this suit is the administrator of Mrs. Fitzgerald, the widow, who died the 26th day of January, 1900. In this suit, there can be no recovery except in her own immediate right; and, if the jury find for the plaintiff, they can assess only such damages as the widow, Mary P. Fitzgerald, suffered by reason of the loss of her husband from the time of his death to the time of her death, a period of four years and four and a half months. Answer: We answer this by saying, while it was proper to bring this suit in ,the name of the widow, and her administrator is properly substituted, we cannot affirm the part of the point which restricts the assessment of damages to-the time of her death. The suit was, in accordance with the law, brought by her for the use of herself and her minor child. But, if this contention would be correct, all rights of the minor to participate in it would be practically taken away, so far as the time after her death is concerned; for there can be but one suit to ascertain the damages occasioned by reason of the decedent’s death. [9] Verdict and judgment for plaintiff for $4,250. Defendant appealed. Errors assigned were (1-6) rulings on evidence, quoting the hill of exceptions; (7-9) above instructions, quoting- them.