Yeager v. Edison Electric Co. , 242 Pa. 101 ( 1913 )

Opinion by

Mr. Justice Potteb,

This appeal is from the refusal of the court below to take off a judgment of compulsory nonsuit. The defendant company was charged with negligence in failing to properly insulate its wires, which were heavily charged with electricity. Upon the trial, at the close of plaintiff’s evidence, the court entered judgment of nonsuit upon the ground that the proof did not show that the wires were in improper condition before the accident. Plaintiff has appealed, and complains of the exclusion of evidence tending to show improper insulation at the point where the accident occurred, and he also contends that the questions of negligence by the defendant, and contributory negligence by the plaintiff were for the jury. The evidence shows that the plaintiff at the time was engaged in painting the outside of a small brick building at the reservoir of the City of Lancaster. The wires of the defendant company entered the building in the peak at the rear, some twenty feet from the ground. The plaintiff was standing upon a ladder engaged in painting the end of the building, in the immediate vicinity of the wires. In shifting his position his shoulder came in contact with one of the wires, resulting in his receiving a severe electric shock which caused permanent injury. The wires were covered with some material, and the plaintiff apparently took it for granted that they were safely insulated. The result showed that this was not the case. In his opinion refusing to take off the nonsuit, the trial judge says: “The plaintiff offered to prove by J. H. Shenk, who has •been an electrician for many years, and bas worked in •.different .cities, that the insulation, did not make the wires safe, but. we refused to admit his testimony, as we believed the test to be whether the insulation was the kind in general use. If we erred in this, we also erred in excluding this testimony. In disposing of this rale we will therefore consider that he testified that the kind of insulation on these wires was not safe, but dangerous. The witness testified that the insulation was of pitch and cotton, and that it was in use in other places and is used in most all outside work hanging in the air.” The plaintiff was, however, not working at a point where the wires were hanging out of ordinary reach, but was engaged at the point where the wires entered the building, and the nature of his employment seems to have made it necessary. for him to approach the wires closely. One who is brought by his employment in close proximity to electric wires which are apparently insulated, can not be fairly charged with contributory negligence in coming in contact with the wires, unless the contact was the result of heedlessness, or of his own lack of proper precautions, for his safety. Prudence requires those in control of a deadly cnrrent of electricity to exercise the highest degree of care in protecting the wires at points where persons in the course of their lawful employment are liable to come in contact with them. It appears from the evidence that the insulating material used in this case, was such as is ordinarily used upon the wires when hanging in the air, and out of ordinary reach. It by no means follows that insulation of this character is reasonably safe for use upon wires at. points where they enter buildings or where it may reasonably be expected that persons in the discharge of duty may accidentally come in contact with them. The trial judge apparently made no distinction between the danger to be apprehended from, the wires when hanging in the air out of ordinary reach and that which should, properly be anticipated at such a point of proximity as this. Insulation that may be sufficient at one place, may not constitute proper protection against danger from the wires at another. As we said in Fitzgerald v. Edison Electric Illuminating Co., 200 Pa. 540: “The company, however, which uses such a dangerous agent is bound not only to know of the extent of the danger, but to use the very highest degree of care practicable 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.......The duty is not only to make the wire safe by proper insulation, but to keep it so by constant oversight and repair.”

The trial judge erred in excluding testimony offered to show that the wires wrere faulty in construction, and were not properly insulated at the spot where the accident occurred. Such evidence would fairly have raised a question for the jury.

The second, seventh, eighth, ninth and tenth assignments of error are sustained; and the judgment is reversed with a procedendo.