Texarkana Gas & Electric Light Co. v. Orr 59 Ark. 215

Texarkana Gas & Electric Light Co. v. Orr.

Opinion delivered June 9, 1894.

1. Appeal—Objection not raised below.

Objection cannot be taken on appeal for the first time that plaintiff should have sued as administrator, instead of merely denominating himself administrator, or that he failed to show his official character by profert of his letters of administration.

2. Pleading—Amendment to conform to proof.

Where a complaint is ambiguous, it being uncertain whether it is an action under sec. 1223 of Mansf. Dig. for the benefit of deceased’s estate, or under secs. 522S-6, ib., for the benefit of his widow and next of kin, if the case was tried below as for the benefit of the estate, the complaint will, on appeal, be considered as amended to conform to the proof.

3. Negligence—Live electric wires—Punitive damages.

Evidence that an electric light company knew in the night time that its wires were badly grounded, that its superintendent gave orders that the power should nevertheless be kept up, that after daylight, about 6 a. m., when many people were on the street, a live wire still lay on a street crossing by coming in contact with which a passerby was killed, is such evidence of wanton disregard of the rights and safety of others as will justify an assessment of punitive as well as actual damages.

4. Contributory negligence—Picking up live wire.

Whether a boy was guilty of contributory negligence in picking up a live wire lying across the street is a question for the jury where it showed no signs of being alive, though he had been warned, a few minutes before, against touching the wires.

Appeal from Miller Circuit Court.

Rueus D. Hearn, Judge.

STATEMENT BY THE COURT.

This suit was instituted by appellee, administrator of the estate of Ed. Wallace, deceased, against the appellant company, in the Miller circuit court, at its November term, 1891, and the cause was tried at the November term 1892, resulting in a verdict and judg*216meat for plaintiff in the sum of $20 actual damages and $200 punitive damages against the defendant.

ABSTRACT.

The cause of action is fully set forth in the complaint, which is as follows, to-wit: “Comes the plaintiff, Thos. Orr, administrator of the estate of Edward Wallace, deceased, and, complaining of the defendant, the Texarkana Gas & Electric Eight Company, a corporation existing under and by virtue of the laws of the State of -Arkansas, states that on the 23d day of August, 1891, defendant owned, maintained and operated in the city of Texarkana, Arkansas, a system of electric lights, and that, by means of wires, the electric current was carried over, upon and along the streets of Texarkana, Arkansas—from the power house to the various points of service in said city ; that, during the night of the 22d of August, 1891, or early on the morning of the 23d of August, 1891, said company’s wires became disabled and out of repair, and, being either broken or disengaged from their fastenings, fell to the ground upon the sidewalk and crossing in the city of Texarkana at the intersection of Broad street and Pine street in said city, and said defendant negligently permitted said wire to remain so grounded and lying upon said street crossing from about 12:30 o’clock a. m. until after daylight in the morning, when said street was throng-ed with passers-by ; that the deceased, Edward Wallace, while passing along said street about or a little after daylight, had his attention called to said obstruction lying upon said crossing, and being ignorant of the character of said wire, and presuming, and having a right to presume, that defendant would not permit a live wire to remain under the feet of passers-by upon so crowded a thoroughfare, took hold of same to cast it aside out of the way of pedestrians, and was killed by the powerful *217current with which said wire was at the time charged. And plaintiff .alleges that deceased came to his death by the gross negligence and wanton misconduct of defendant, its agents and employees, and that deceased came to his death without fault on his part, and to the damage of his estate in the sum of twenty thousand dollars. Wherefore plaintiff prays damages in the sum of twenty thousand dollars, and his cost in and about this •cause expended.”

The answer is substantially a denial of all the material allegations in the complaint.

The evidence in the case is to the effect that, during the night of the 22d day of August 1891, there was an electrical storm in Texarkana, such as was never known in that locality before that time; that at that time the appellant corporation was operating its lamps and wires in that city for the purpose of furnishing lights to its inhabitants ; that there was more or less of inexperience in the persons immediately in charge of the operation of the machinery at the “power house;” that there was an apparent want of that extra care and watchfulness on the part of those in control, which the peculiar circumstances seem to have demanded ; and that, by reason of the terrific character of the storm, and its effect upon the machinery and wires, there was considerable demoralization among the employees then on duty.

The testimony goes to show that some of the wires were broken and down between 12 o’clock and 2:30 o’clock a. m. of the night in question, while some of the testimony would seem to point to a later hour. At all events no •discovery of a “ground” seems to have been made at the “powerhouse” earlier than about 2 o’clock a. m. “By ‘ground’ is meant any connection between the line and the earth. This connection may be made by the line, or any of its connections, being broken, and the ends coming in contact with a tree or its limbs, or with the *218pole or roof of a house, or by another wire or rope or string being thrown over the line and resting on the earth. To cause ground by the wire coming in contact with the pole or a tree or the roof of a house, there must be damp. ’’It was .shown by the testimony of experts that it is scarcely possible to ascertain the locality of a “ground ” by the application of the most efficient tests, but that these tests are available to ascertain the fact that there is a “ground,” and, to some extent, the nature of the “ground.”

There is no complaint that proper tests were not applied on the occasion of the storm in question. In fact the object of the application seems to have been attained by the person in charge of the machinery at the “power house,” for we find one witness (who seems to have been in a position to testify directly on the subject) testifying as follows: John Thurston testified: “I was at the electric plant at work, carrying in strips to fire with, when Ed. Wallace was killed. Mr. Gafney, the engineer that night, sent me to the hotel to notify the superintendent that the alternating incandescent machine was badly grounded. I went and told him— Mr. Randall. The superintendent told me to go ahead. He asked me what the trouble was, and I told him as stated, and he asked me what time it was, and I replied, I did not know, and then he told me to go back and tell them to go ahead. I went back, and told Mr. Gafney. I went to work for the Electric Eight Company on the 14th of June, I believe, and this thing happened in August, I think. That was a very bad night. We were all badly scared up.”

The evidence discloses to us the fact that, while the locality of a “ground” cannot be ascertained by the application of tests at the “ power-house,” and also that the storm was raging so furiously, and the night was so unfavorable that it may have been asking too much of *219the employees of the company to hunt up those broken wires until daylight, yet we are informed by the testimony in the case that the accident resulting in the death of plaintiff’s intestate occurred some hours after daylight, and at a time when peopie had begun to appear upon the streets of the city.

Concerning events immediately connected with the accident, it is said in testimony that it was during the thunderstorm, about 5:30 o’clock in the morning, that Ed. Wallace came into the saloon where witness was working, the “Triangle Saloon” just across the street from Smith’s drug store. This was about ten minutes-before he was killed, and the witness, Jesse Cole, spoke to him about catching hold of the wires that were-connected with the main wire and that ran into the saloon. He then had hold of a dead wire, and witness then told him to be careful of those wires. While deceased was at this point, a short time afterwards, a hog had come in contact with live wires on the opposite side of the-street, and made demonstrations of having received a. shock from them, but whether deceased saw this or not witness could not say, further than that he was in a position to have seen it, and witness believed he did, as they were standing together on the sidewalk, in full view. From this point, deceased went across the street to Smith’s drug store, and when about midway the street—near the street-car line—he picked up a broken wire that ran into the saloon he had just left, and dragged it along towards Smith’s corner, when he-was ordered by a policeman to put down the wire. In apparent obedience to this order, he threw the wire— “flipping” it as one said, “flopping,” as another said— and as it went over (his head), he “hollered” out, and took hold of the wire with both hands, and fell dead, almost immediately. It would appear that, in throwing the wire from him, it had crossed, forming a circuit, and *220thus the current was created. He was then near the Smith sidewalk. From the following language of the witness, it would seem that the crossing of the wire spoken of was the crossing of the dead wire with a live wire that chanced to be at that point, to-wit: “Deceased was not injured by taking hold of the wire in the street, and he was throwing this wire off the street. I knew at the time the other wire was alive, as it had shocked a hog that got tangled up in it. No life was noticable in these wires before they were crossed.” The evidence shows that the struggles of deceased were of the briefest character. He cried out twice, and his hands were burnt and drawn by the wires. He died almost instantaneously.

The evidence does not give the age of the deceased, but we infer, from the language used with reference to him, that he was a boy not yet arrived at the age of manhood ; and from his actions, as detailed by the witnesses, he appears to have been of that indiscreet age which is between the irresponsibility of youth and the full responsibility of manhood. He appears to have been at an age when it might fairly be left to the jury to say how far he should be held responsible in any given state of case.

Scott & Jones for appellant.

1. Plaintiff sues as Thomas Orr, administrator, and not as administrator. His representative capacity is not alleged, nor is profert made of his letters. The defect was not healed by the testimony. 25 Ark. 7; 54 id. 525.

2. The evidence shows the intestate guilty of contributory negligence. 11 Fast, 60; 55 Ark. 213.

3. It was error to award exemplary damages. There was no malice, wiljtilness or conscious indifference to consequences. 53 Ark. 7.

*2214. No negligence was shown.- The accident resulted from the “act of God,” the wires being broken by lightning. The company was bound to reasonable care only, and could be held responsible for an injury from the breaking of wires, only by proof of culpable negligence. 71 N. Y. 81; 27 Am. Rep. 10.

5. The judgment should be reversed, and the cause dismissed. 57 Ark. 461.

J. D. Cook for appellee.

1. There is ample proof of culpable neglig'ence. Por over six hours defendant knew its wires were heavily grounded in a populous city, and made no effort at all to repair the line or prevent injury. Its indifference and carelessness was wanton, and called for punishment by exemplary damages.

2. Whatever defects there may have been in the pleadings, they were not objected to. It is too late now. 25 Ark. 7; 13 id. 419; 11 id. 664; 8 id. 314.