Freibert v. Sewerage and Water Bd. New Orleans , 159 So. 767 ( 1935 )

My inability to agree with my associates results solely from my belief that it could not possibly have been within the contemplation — reasonable or unreasonable — of any one that Freibert could come into contact with the uninsulated wires of defendant.

I concede, arguendo, that it may have been negligence on the part of defendant to fail to insulate the wires, but I feel that such negligence is of no importance here, because negligence may form the basis of a recovery in tort only where the ultimate damage is such as should have been within the possible contemplation of the negligent party.

A clear understanding of the facts is necessary.

The deceased was working on a scaffold erected by himself. He was 50 feet above the ground and 15 feet above the roof trusses on which were located the wires in question. There was no way in which he could come into contact with the wires except by falling 15 feet from the scaffold to the wires on the roof trusses.

Roof trusses are so far apart that a person falling upon them will almost certainly fall through them. Thus, if a person situated as Freibert was, on a scaffold 15 feet above such trusses, should fall, it is almost certain that he will fall, not only 15 feet from the scaffold to the trusses, but also the 35 feet from the trusses to the ground.

Such a fall will almost certainly prove fatal. In fact, a fall of 15 feet from the scaffold to the trusses, even if the body remains on the trusses and falls no further, will produce most serious, if not fatal, results.

The evidence shows plainly that, when Freibert and the other workmen were painting the trusses, the current was turned off in the wires near them. My associates point to this as showing that defendant's officials realized the danger, and it is maintained from this that the current should have remained off even when Freibert was on the scaffold 15 feet above the wires. I believe, on the contrary, that the fact that the current was turned on when Freibert was on the scaffold indicates that every one realized that at that time there was no possibility of his coming into contact with those wires except as the result of a terrific fall — a fall which would almost certainly result in death, regardless of whether or not there was electric current in the wires.

I do not point to the fall of Freibert as contributory negligence on his part because contributory negligence was not pleaded, but I do point to it as indicating that, since only in that way could he have come into contact with the wires, defendant's officials were not negligent in failing to anticipate that he might come into contact with them at all.

Suppose a distributer of electric current is required by law to completely insulate all of its overhead wires, and suppose that a person falls out of an airplane, strikes the wire, and is burned to death, can the failure of the company to insulate the wires form the basis of a recovery? Manifestly not, because it could not have been contemplated that any one would fall from an airplane upon those wires. Such a fall would almost certainly cause death, regardless of the current in the wires. That is exactly the case here. I do not wish to be misunderstood. I concede that, if Freibert had been working near the wires, and if he had been careless and had touched them inadvertently or had reached out to steady himself and had come into contact with them, then the lack of insulation or the failure to cut off the current might have been considered as a negligent act such as might form the basis of recovery. But, where the negligent act could not possibly produce an accident except by the interposition of some totally unexpected force of such a nature as to be beyond the realm of possible expectation or foresight, then the original act of negligence is not the legal cause of the ultimate damage.

The rule for which I contend is well stated in the Law of Negligence by Sherman and Redfield, vol. 1, p. 58, § 29, where it is stated: "* * * A person guilty of negligence should be held responsible for all the consequences which a prudent and experienced man, fully acquainted with all the circumstances which in fact existed (whether they could have been ascertained by reasonable diligence or not) would, at the time of the negligent act, have thought reasonably possible to follow, if they had occurred to his mind."

Cooley in his work on Torts (4th Ed.) vol. 1, p. 137, § 53, quotes with approval the following: "In determining what is proximate cause the true rule is that the injury must be the natural and probable consequence of the negligence, such a consequence, as under the surrounding circumstances of the case might and ought to have been foreseen by the wrongdoer as likely to flow from his act."

In the American Law Institute's Restatement of the Law of Torts, vol. 2, p. 816, is found the following: "If the actor's conduct has created a situation, which is harmless if left to itself but is capable of being made dangerous to others by some subsequent action of a human being or animal or the subsequent operation of a natural force, the actor's negligence depends upon whether he as a reasonable man should recognize such action or operation as probable. The actor as a reasonable man is required to know the habits and propensities of human beings and animals and the normal operation of natural forces in the locality in which he has intentionally created such a situation or in which he knows or should realize that his conduct is likely to create such a situation (see Sec. 200). In so far as such knowledge would lead the actor as a reasonable man to recognize a particular action of a human being or animal or a particular operation of a natural force as customary or normal, the actor is required to anticipate and provide against it. The actor is negligent if he intentionally creates a situation, or if his conduct involves a risk of creating a situation, which he should realize as likely to be dangerous to others in the event of such customary or normal act or operation (see Sec. 303)."

The point which I made is this, that the intervening act of the human being in this case, to wit, the fall of Freibert, was not such as a reasonable person would recognize as within the realm of probability. Had the wire been very close to the scaffold on which Freibert was working, then it would have been within the realm of possibility that he might have reached out carelessly and touched it.

This rule was approved in Shalley v. New Orleans Public Service, Inc., et al., 159 La. 519, 105 So. 606, 607, in which it was held that the sewerage and water board was guilty of actionable negligence in placing certain large iron pipes near the tracks of the local street railway company, and that there could be recovery by a person standing on the steps of a car preparatory to alighting, because it, the sewerage and water board, "in placing the pipes near the track as indicated, must be charged with having full knowledge that passengers on the street cars who intended to get off at the ensuing stop would take their position on the steps at such a distance from the stopping place of the car."

In none of the many cases cited in the majority opinion is there anything contrary to the views which I have expressed.

Clements v. Electric Light Company, 44 La. Ann. 692, 11 So. 51, 52, 16 L.R.A. 43, 32 Am. St. Rep. 348, a case relied upon in the majority opinion, indicates this distinction which I seek to make. There the court said: "It was the duty of the company, * * * to see that their lines were safe for those * * *in close proximity to them." (Italics mine.)

In Potts v. Shreveport Belt Railroad Company, 110 La. 1,34 So. 103, 105, 98 Am. St. Rep. 452, it was stated that the duty to use necessary care and prudence with reference to such wires extends to "places where others may have the right to go either for work or pleasure." There was certainly no duty to Freibert under the circumstances shown here, because it could not possibly be contemplated that he would fall from the scaffold, a distance of 15 feet, to the wires. In other words, to use the language of the Potts Case, he had no right to go where he was, and it could not be expected that he would go there.

In Joyce on Electrical Laws, the distinction I made is set forth plainly. It is there said that the duty of maintaining such wires in safe condition extends in favor of those "who by their occupation are brought in close proximity to them."

In Walters v. Denver Consolidated Electric Light Company,12 Colo. App. 145, 54 P. 960, 961, the court said: "We may concede that at places where there is no apparent possibility of injury ensuing from electric wires it would not be negligence to leave them uncovered."

In Hebert v. Lake Charles Ice, Light Waterworks Co.,111 La. 522, 35 So. 731, 734, 64 L.R.A. 101, 100 Am. St. Rep. 505, the language of the decision sets forth the distinction. There the court said that the electric light company was bound to use the very highest degree of care to avoid injury "to every one who may be lawfully in proximity to its wires, and liable to come accidentally or otherwise in contact with them."

In Bujol v. Gulf States Utilities Company (La.App.)147 So. 545, 546, 547, it was said that "the duty to insulate does not extend to the entire system or to parts of the line where no one could reasonably be expected to come in contact with it."

The distinction I make is again plainly set forth in Ryan v. St. Louis Transit Company, 190 Mo. 621, 89 S.W. 865, 868, 2 L.R.A. (N.S.) 777, in which the court said that such a company must maintain its wires in safe condition for those who "work in their vicinity," and in that case, which is much relied on in the majority opinion, the court said that the company under such circumstances was "bound to anticipate that these workmen, while in the course of their employment, would touch or come in contact with these cables." Such is not the case here. When the workmen were in proximity to the wires the current was turned off. It was only when they were on the scaffold 15 feet above the wires that the current was again turned on.

I see no necessity to refer in detail to each case cited in the majority opinion. In every one of them there is clearly pointed out the distinction between the duty to those who may be expected to come into proximity with such wires and the duty to those whose presence near the wires could not possibly be foreseen. There are, however, two additional cases cited by my associates to which I desire to refer. They are Birsch v. Citizens' Electric Company, 36 Mont. 574, 93 P. 940, and Williams v. Springfield Gas Electric Company, 274 Mo. 1, 202 S.W. 1.

In the opinion rendered by my associates the Birsch Case is referred to as one in which "a hod carrier slipped and fell from a scaffold and in falling came in contact with a heavily charged wire." The facts of that case as stated in the decision itself are: "It was raining, and the scaffold, boards, and tools were wet. In the act of performing his work the plaintiff stepped upon the mortar board and slipped. Apparently he involuntarily threw out his hands to save himself or restore his equilibrium, when his left forearm came in contact with the heavily charged wire. He became at once insensible and fell to the ground and upon a pile of rock."

Had Birsch fallen from the scaffold to wires below, the situation would have been exactly the same as that presented here, but no such thing occurred. The wires were only 2 feet above him and less than 4 feet away from him, and in attempting to steady himself he involuntarily threw out his hand and struck the wires. That situation in no way resembles the situation presented in this case.

In the Williams Case an electric light company was held liable for damage caused to a boy who climbed into a tree and, when a branch broke, fell against an uninsulated wire. But the facts of that case plainly distinguish it from the case at bar. There the court said that the tree was one which children could and did easily climb, and that the insulation of wires in and near the tree had been in bad condition for more than a year. A building had been under construction very near the tree for some months, and children had formed the habit of climbing to the top of the building by using the tree. The uninsulated wire "was 36 inches from the end wall and 12 inches from the edge of the cornice." Manifestly, it would have been reasonable to expect that, through carelessness, one of these children might reach out and touch the wires. The court recognized that "a company stretching electric wires in a city, through trees like the evidence tends to show the tree in this case to have been, must take notice of boyish impulses and anticipate the presence of children in such trees."

I again refer to the fact that the record shows that the defendant company's employes did not fail to cut off the current when Freibert and his coworkers were working near to these wires. It plainly appears that they did so and that the current was turned on only after they had left the immediate vicinity of the wires and had assumed a position from which they could not possibly come into contact with them except by a totally unforeseen and entirely unexpected accident.

I do not believe that the defendant company is liable under such circumstances.

I therefore respectfully dissent.