Borell v. Cumberland Telegraph & Telephone Co. 133 La. 630, 63 So. 247

PROVOSTY, J.

The Pizzini Hotel and the Mitchell store in the town of Crowley stand within about six feet of each other. The roof of the front porch of the Mitchell store and the floor of the second story gallery of the Pizzini Hotel are on the same level, and both extend over the sidewalk. The roof is flat and extends laterally across the narrow space between the two buildings, so that one may step upon it from the adjoining gallery. And any -one doing so finds himself opposite the space between the two buildings and near the telephone and electric light wires of the Mitchell building, which are attached to the side of the Pizzini building at and near the front corner of it.

During a wind and rain storm in the night two or more of the cable or lead wires of the electric light plant had broken in front of the Pizzini Hotel. One of the ends had fallen to the street pavement and lay there “spitting fire.” Two others had dropped upon the roof of the front porch of the Mitchell store and, this roof being of metal, had communicated to it the heavy electric current they carried.

E'arly in the morning complaints began coming to the office of the defendant company of telephones out of order. The trouble consisted of a buzzing sound upon the lines. The persons in the office knew that this was caused by the telephone and electric light wires being in close proximity to each other, though not in actual contact. Some 20 different complaints of this kind had already been registered at the defendant company’s office by a quarter past 7 in the morning when plaintiff, who was a trouble and line man of the defendant company, reached there for his day’s work. The Pizzini Hotel and the Mitchell store were among the complainants, and plaintiff was sent at once to ascertain at what point the lines serving these two buildings were in proximity. When he came to the end of cable on the street pavement “spitting fire,” he prudently picked it up and put it in the gutter. He then went into the Pizzini Hotel and up to the second story front gallery and stepped upon the iron roof of the Mitchell store opposite the space between the buildings. By simply looking at the wires he could then have ascertained whether they were in too close proximity or not. There was no necessity of his touching them. In *633fact, on being sent on this mission, he had been warned not to touch any wires. Thoughtlessly, for some reason he cannot explain, if for any, he took hold of the telephone wire. The telephone wire was grounded, so that by thus taking hold of it he completed the circuit between it and the electrically charged iron roof upon which he stood, and the result was that he received a shock that at once made him unconscious and caused him to topple over upon the iron roof. Fortunately just at that moment the power was shut off at the plant; information having reached there of the cables having been broken. He would else inevitably have been killed. As it was his right hand and the back of his head were badly burnt.

For these injuries and for his sufferings he sues the defendant company and the town of Crowley in damages. The town of Crowley owns and operates the electric light plant.

The negligence alleged against the telephone company is that it did not furnish him with rubber boots and gloves with which to do his work, and that it sent him to this •dangerous place without having sufficiently warned him of the danger.

The evidence shows that linemen and trouble men of telephone companies do not need and do not use rubber boots and gloves in doing their work; and it shows that plaintiff was not sent to do any dangerous work nor into any dangerous place but simply to ascertain by ocular inspection at what point the wires had come in too close proximity to each other; and it shows furthermore, that plaintiff was an experienced lineman whom the defendant company could not have had any reason to suspect of being as ignorant of the dangers from electricity as he now pretends that he was.

We fail to discover any negligence whatever on the part of the defendant company.

But the case stands differently with the town of Crowley.

“A municipal corporation has a dual character, the one public and the other private. * * • In the former case its functions are political and governmental. * * * In its second character (that is, in the exercise of its purely municipal functions or the doing of those things which relate to special or private corporate purposes), the corporation stands upon .the same footing with a private corporation and will be held to the same responsibility with a private corporation for injuries resulting from its negligence.” 28 Cyc. 1257.

See Pontchartrain R. R. Co. v. New Orleans, 27 La. Ann. 162; Stewart v. New Orleans, 9 La. Ann. 461, 61 Am. Dec. 218; Bennett v. New Orleans, 14 La. Ann. 120; New Orleans v. Kerr, 50 La. Ann. 413, 23 South. 384, 69 Am. St. Rep. 442 ; 28 Cyc. 1263; 20 A. & E. E. 1196.

“It is held, as a rule, that a city in supplying water or light to its inhabitants acts as a private, corporation and is subject to the same duties and liabilities.” 20 A. & E. E. 1197.

Now plaintiff alleges that the defendant town was negligent in that it well knew the dangerous condition in which its ' electric wires were and yet took no steps to rectify the situation until after he had been injured.

There can be no question that to have left these broken ends of highly charged wire in the position in which plaintiff found them, would have been the grossest kind of negligence, making the defendant town responsible for all consequences, if the agents of the defendant town knew of this dangerous condition of things. The sole question must therefore be as to whether the agents of the town had such knowledge. The evidence shows that they had no knowledge of it; but if this condition of things had existed so long that it was their legal duty to have had knowledge of it, or if by the use of means which it was the legal duty of the defendant town to have provided but which were not provided they would have had knowledge of it, then the legal situation is as if 'they had such actual knowledge; or, in other words, the failure to have had such knowledge would then in itself constitute actionable negligence. *635Mitchell v. Charleston Light & Power Co., 45 S. C. 158, 22 S. E. 767, 31 L. R. A. 577; Columbia v. Woodbury, 136 U. S. 473, 10 Sup. Ct. 990, 34 L. Ed. 477.

The evidence shows that there had been a storm during the night which might well have, as it actually did, caused the wires to fall, and that at so late an hour as that at which plaintiff was injured, when the telephone company was already sending its repair men on their round, no steps had yet been taken by the agents of the defendant town to ascertain whether the storm had not disturbed the electric light wires and brought about a dangerous condition of things; the evidence also shows that, by means of an instrument known as a “ground'detector,” the person in charge of an electric light plant is enabled to know when a break has occurred in the wire of any circuit, and that the plant of the defendant was provided with such an instrument, but that it was out of order.

Pretermitting the point of whether enough time had not elapsed since the breaking of these wires for the defendant town to have been charged with legal knowledge of their condition, even apart from the facility afforded by such an instrument as the “ground detector” above mentioned (that is to say, even on the assumption of the agents of the town having had no other means than ordinary inspection for discovering such a break in the wires), we think that the clear legal duty rested upon the defendant town to have had this instrument at its plant and to have kept it in good order and to have shut off the current from any circuit, the wires of which were shown by this instrument to be broken.

“Persons using dangerous agencies are required to use the utmost care to prevent injuries and to adopt every known safeguard.” 29 Cye. 460; Potts v. Shreveport Beit It. Co., 110 La. 1, 34 South. 103, 98 Am. St. Rep. 452, and cases there cited.

Electrical companies are required to “have due regard to the existing state of science and of- the art in question.” 15 Cyc. 472. Had this instrument been in good order, the fact of these wires being broken would have been known, and the persons in charge of the plant would have cut off the circuit to which these wires belonged long before the accident to plaintiff.

Three of the fingers of plaintiff’s right hand (the middle and the little fingers and that between) were so badly burnt that they have become rigid and bent in, so as to be of no use; in fact, worse than if amputated. After about a year the skin had grown back over the burnt place on plaintiff’s scalp; and the disfigurement resulting therefrom is now but slight, if any. Plaintiff’s sufferings in the healing process were great and long protracted. The judge dismissed the suit as against the town and gave judgment against the telephone company for $5,000. We have taken a different view in regard to which one of the defendants is liable but are not disposed to disagree with the view thus taken by the judge as to the proper amount of damages to be allowed in the case. In the case of Smullins v. Shreveport Electric Light & Power Co., 116 La. 1034, 41 South. 248, where the injuries were very similar, a verdict of $8,000 was approved.

The judgment appealed from is set aside, and it is now ordered, adjudged, and decreed that the suit of plaintiff be dismissed as against the Cumberland Telephone & Telegraph Company, and that as against the town of Crowley the plaintiff Paul Borell have judgment in the sum of $5,000, with legal interest from this date, and the costs of suit.

On Rehearing.

MONROE, J.

[1,2] This court predicated its judgment rejecting plaintiff’s demand against the telephone company upon certain findings of fact, and plaintiff has not complained of that judgment. Those findings were in substance as follows, to wit: That, *637by reason of a storm during the night, certain heavily charged wires of the electric company had been thrown down, thereby interfering with the operation of the wires of the telephone company; that plaintiff, an experienced lineman, whom the telephone company “could not have had any reason to suspect of being as ignorant of the dangers from electricity as he now pretends,” was sent at 7:30 o’clock on the morning of February 11th simply to ascertain by ocular inspection at what point the wires had come in too close proximity to each other and was warned not to touch the wires; that for the purposes of his mission.and in view of his experience and of the special warning so given, neither the work nor the place to which he was thus assigned was dangerous, but that “thoughtlessly, and for some reason he cannot explain, if for any, he took hold of the telephone wire,” though two of the wires of the electric company were lying across the metal roqf on which he was standing, and! another, the broken end of which was “spitting fire,” had been “prudently” picked up by him from the sidewalk and thrown into the gutter. Our reconsideration of the ease strengthens the conviction that, though plaintiff, perhaps, lacked that realizing sense of the action and effect of electricity which one can imagine would be derived from witnessing a tragedy or being the victim of a near tragedy caused by it, he nevertheless knew, from precept and example, that, in the situation in which he was placed, all wires were to be dealt with as “hot” wires and left untouched, besides which he had been instructed that he was merely to locate the trouble, which, he admits, is done, and could have been done on that occasion, by ocular inspection and was not to attempt to clear the wires. Under such circumstances, there being no danger to him, either in the duty or the place to which he was assigned, save such as might arise from a particular act of his own, against which the knowledge that he possessed and the instruction which he had received should have been sufficient to warn him; his commission of the act was as surely the sole, proximate cause of the injury that he received as the picking up of a newly-made horseshoe, which the visitor in a blacksmith’s’ shop knows is likely to be hot, is the cause of a burned hand. The poles, wires, and attachments, etc., of the defendant were in good order, and the temporary derangement of the wires had been caused by a wind and rain storm of some violence. The witnesses speak of it as having occurred during the preceding night, and those who testify at all as to the time express the opinion that the storm was probably most violent towards morning. W. G. Rose, city electrician, in charge of. the lighting plant, says:

“The wind was blowing very high and there was quite a bit of electricity, and, in the early hours of the morning there was quite a heavy rainfall; * * * it was after midnight that the hardest part came up.”

John Mcllhinney, superintendent of the plant, says:

“There was a storm some time early in the morning. * * * To the best of my knowledge, it was just before daylight.”

[3] Neither of the witnesses speaks more definitely or from positive knowledge as to the time (though it is conceded that the derangement of 'the wires was attributable to the storm), and we are not just now advised of the time at which day breaks in the parish of Acadia upon the 11th of February. We imaginé, however, that it is not very long before 7 o’clock, and it was about that time that Mr. Rose, being informed that some of the electric light wires had been blown down near the Pizzini Hotel and the Mitchell store, directed a messenger to hurry to the plant and tell the engineer to “shut down,” which was done immediately and just in time to save the life of the defendant, *639who was then lying senseless on the roof of Mitchell’s gallery with the telephone wire grasped in his hands, 1,100 volts of electricity passing through his body, and the metal of the roof burning the scalp from the back of his head. Although, therefore, we do not know whether the interval between the blowing down of the wires and the accident was one of minutes or hours, we do know that, after learning that the wires were down, the officers of the plant lost no time in cutting off the electricity from them and, we may add, lost no time in replacing the wires in position. Upon the former hearing of the case, the view was adopted that the city of Crowley should be held liable because it has and should have in its plant an instrument called a “ground indicator,” by means of which the person in charge should have been enabled to know of the grounding of the wires, but that the instrument was not then in good order, and that the city was to blame for its condition. The conclusion thus reached leaves out the factor of the plaintiff’s negligence; and, moreover, it appears that the “ground detector” does not, like a clock or a steam gauge, impart its information automatically but does so only when specially called on. In other words, the instrument is one whereby certain tests may be applied, at the will of the operator, and certain results obtained; and, as it is hardly to be expected that it will be kept in operation continuously, the question to be here considered is: Assuming that it had been in good order, and that tests had been made at reasonable intervals, or that a test had been made without unreasonable delay after the storm whereby defendant’s electric light wires were blown down, would the derangement of the wires have been ascertained any sooner than it was ascertained? To answer that question it would be necessary for us to know at what time, with reference to that at which the officers of the plant were informed of it, the wires were blown down, and the transcript does not furnish that information; hence the alleged negligence of the city of Crowley, so far as it might affect this case, is not established. Finally, if negligence on the part of the city were established, and we should hold that the negligence of the plaintiff were not the sole, proximate cause of the accident, there can be no doubt that he was negligent and no doubt that his negligence, directly and immediately, contributed to the accident, and he could not recover for that reason. The judgment heretofore handed down having become final in so far as plaintiff’s demand against the telephone company is concerned, it is ordered, adjudged, and decreed that said judgment, in so. far as it condemns the city of Crowley, be set aside, and that the judgment appealed from be now in that respect annulled, avoided, and reversed, the demand of the plaintiff against said city rejected, and this suit dismissed at plaintiff’s cost in both courts. .

PROVOSTY, J.( dissents, adhering to the original opinion.