Wilbert v. Sheboygan Light, Power & Railway Co.

*5 Tbe, following opinion was filed April 17, 1906:

SiebecKER, J.

Appellant contends tbat tbe evidence is insufficient to support tbe inference that the negligence complained of was the proximate cause of tbe injury. Tbe plaintiff’s claim respecting tbe defective and dangerous condition, construction, and maintenance of the light plant is not controverted, but it is asserted tbat tbe defendant bad no knowledge tbat tbe tree wire bad been attached to tbe guy wire and post, or tbat tbe lamp insulator by cracking bad become defective and unsafe, thus permitting tbe electric current to escape from tbe lamp to tbe span and guy wires and tbence to tbe tree wire. Tbe jury found tbat these conditions of tbe plant made tbe street at tbe place of accident dangerous to persons using it for tbe ordinary purposes of travel, and tbat these dangerous conditions bad existed a sufficient length of time before tbe accident for tbe defendant, in tbe exercise of ordinary care and diligence, to have discovered and remedied them. It is not questioned but tbat these defects and tbe dangerous condition of tbe street existed at tbe time of tbe accident, as claimed; but it is urged tbat tbe proof is insufficient to show tbat tbe insulator near tbe lamp bad been out of repair for a sufficient length of time to charge tbe defendant with negligence in not having discovered it before tbe accident occurred. There is evidence tending to show tbat a few hours after tbe accident tests were made by defendant to ascertain whether tbe guy wire was charged with an electric current, and tbat it became so charged when, by raising tbe lamp to its full height, tbe locking device of tbe lamp attached to tbe span wire interlocked, indicating that the electric current charging tbe span, guy, and tree wires came from tbe lamp through tbe defective insulator immediately above it. There is evidence to tbe effect tbat, in tbe evening before tbe accident, electric sparks were observed among tbe tree branches, near tbe span and guy wires, and at points some distance from tbe pole, *6 along the wires leading to this pole which supported the span and guy wires. Several witnesses testified that they had observed the branches of trees near to and in contact with these wires, and had seen parts of branches lying on the ground below, the ends being burned and charred and some of them having depressions burned into them, indicating contact with heat. It also appears that the voltage of the current was of such high potential that, if it passed to these wires, it would heat them. The time during which this burning was testified to have occurred covered a period of several weeks. The evidence tends to show that there was nothing in the appearance of things to indicate that the defective condition of the insulator may not have existed for a considerable time before the accident. There was no conflict in the proof as to the sparks of electricity among the wires at the pole and the burning of the twigs and branches. In view of the nature of the business and the circumstances of the case, we are of the opinion that the jury were justified in their inference that the defect in the insulation had existed for a sufficient time for the appellant, in the exercise of ordinary care in the conduct of the business, to have discovered and repaired it before the injury happened.

It is also contended that there is no basis for the jury’s finding that defendant, in the exercise of reasonable care, ought to have discovered the dangers which caused Wilbert’s death, and to have removed them before the accident, upon the ground that the existence of the tree wire was an intervention not within reasonable apprehension in the ordinary course of events. If the existence of the tree wire was not within the field of reasonable apprehension, then appellant’s contention is well founded, for it cannot be charged with negligence respecting the existence.of a condition not reasonably to be anticipated in the course of events. The question, therefore, is whether, under the facts and circumstances proven, the existence of this tree wire was an intervention such as *7 appellant should reasonably have apprehended as likely to exist. To say that a condition is reasonably to be apprehended does not imply that the exact condition proven as to the erection of this tree wire was to have been expressly contemplated, but it implies that a dangerous condition, in the nature of this one, was likely to arise in connection with the conduct of appellant’s business. The danger incident to the use of electricity is imminent and lurking in character, and a high degree of watchfulness for the prevention of accidents is imposed on persons handling it. This court, referring to the care required of those handling electricity and the lurking danger to one coming in contact with live wires, stated, in Nagle v. Hake, 123 Wis. 256 , 101 N. W. 409 :

“From the very fact of these known dangers ... [a person] must necessarily be charged with a higher degree of caution and diligence than one who is dealing with sticks and stones which can convey no such concealed death stroke.” Fitzgerald v. Edison E. I. Co. 200 Pa. St. 540, 50 Atl. 161 ; Mitchell v. Raleigh E. Co. 129 N. C. 166 , 39 S. E. 801 .

The watchfulness needed to prevent such accidents should take into account the acts of strangers and the public generally. As above stated, we are of the opinion that the evidence warrants the inference drawn by the jury, that, if appellant had exercised reasonable care and diligence, it would have discovered the defective insulator and that the electric current was escaping to the connecting guy and span wires, and in the performance of this duty it would in all reasonable probability have observed the existence of this tree wire and the dangers incident to it. Erom this it must follow that the existence of this tree wire was not such an extraordinary and unustral condition that it can be said that, as a matter of law, it was not reasonably to be apprehended in the conduct of appellant’s business. Under the circumstances the court properly held that the evidence supported the finding that the defendant, in the exercise of ordinary care, ought to have *8 discovered the defects and dangers complained of, and to have removed them before Wilbert’s death. The following adjudications have a bearing on this subject: Kellogg v. Chicago & N. W. R. Co. 26 Wis. 223 ; Atkinson v. Goodrich Transp. Co. 60 Wis. 141 , 18 N. W. 764 ; Brown v. Chicago, M. & St. P. R. Co. 54 Wis. 342 , 11 N. W. 356, 911 ; Meyer v. Milwaukee E. R. & L. Co. 116 Wis. 336 , 93 N. W. 6 ; Cary v. Preferred Acc. Ins. Co. 127 Wis. 67 , 106 N. W. 1055 ; Morey v. Lake Superior T. & T. R. Co. 125 Wis. 148 , 103 N. W. 271 ; Gilman v. Noyes, 57 N. H. 627; Lane v. Atlantic Works, 111 Mass. 136 ; Lowery v. Manhattan R. Co. 99 N. Y. 158 ; 1 N. E. 608 ; Jensen v. The Joseph B. Thomas, 81 Fed. 578 ; McCauley v. Norcross, 155 Mass. 584 , 30 N. E. 464 .

We are of the opinion that the trial court properly awarded judgment on the special verdict.

By the Court.- — Judgment affirmed.

A motion for a rehearing was denied June 21, 1906.