Consolidated Gas Electric Light & Power Co. v. State Ex Rel. Smith

Pearce, J., delivered the opinion of the Court. This suit was brought by the State for the use of Mary O. Smith, widow, and Harry E. Smith, infant son of Harry H. Smith, deceased, against the Consolidated Oas Electric Light and Power Company to recover damages for the death of said Harry H. Smith, caused by the alleged negligence of the defendant. There was a verdict for $4,800, of which there was apportioned by the jury to the widow the sum of $2,300, and to the infant child $2,500, and from the judgment on this verdict the defendant has appealed. There are thirty-eight exceptions, the last being to the ruling on a motion to strike out certain evidence admitted subject to exception, and upon the prayers, and all the others being to rulings on the admission of evidence.

The deceased was a lineman of the Western Union Telegraph Company, and came to his death on May 8th, 1907, while engaged in his work as such lineman, by reason of his hand coming in contact with an electric light wire of the defendant company, carrying a current of 2,200 or 2,300 volts, supported upon a cross-arm belonging to the defendant company and maintained upon a pole of the Western Union Telegraph Company. At the point where Smith’s hand came in contact with this wire the insulation had been cut away by someone unknown, for the space of an inch, or an inch and a half, close to the cross-arm. The pole in question was a cable pole. At its top were seven double arms of the Telegraph Company carrying about sixty'of its wires.

The cable box was below these seven arms, and below these seven arms was a platform about twenty feet from the street, supported by two iron bi’aces or angle irons bolted to the pole. About six feet below the ¹⁹⁵ lowest "Western Union arm was the cross-arm of the defendant carrying its wires, and below that was another cross-arm belonging to the United Railways and Electric Company. On the day of the accident, Smith, in company with Eyler and Uhler, two other linemen of the Telegraph Company, were engaged in stringing an insulated but uncharged wire from this cable pole on Guilford Avenue between Eager and Chase Streets to the Belvedere Hotel. Smith took a hand line to 'which was attached the wire to be strung, and with the rope in his hand he climbed the pole, Eyler being on the next pole south, and Uhler being on the elevated railroad-structure in the street at that point.

Eyler described the situation as follows: “Smith went up to the angle irons under the platform * * * The angle irons he was against were on the opposite side of the pole from that shown in the photograph offered in evidence * * * I was there when it was taken. The photograph now handed to me is the photograph that, was taken when I was present. He went up as high as the platform; then he went to pass the rope he had taken up; he got his right foot down in the angle iron on the east side of the pole, and had his left foot on the west angle iron, with his hack leaning against the west angle iron, and taking the rope in his left hand, and holding on with his other hand, he threw the rope or twirled it over the wires, and tried to grab the end of it, but in throwing the rope his fingers came in contact with that bare spot, and I saw a ñame at the point where his hand was in contact with the wire, and I called to Uhler: ‘Harry is burning up.’ ” Eyler at once came down from his pole, ran to (he pole on which Smith was hanging, and climbed it, and just as he was about to seize Smith’s coat in the effort to release him, Smith fell to the ground insensible, and died an hour or two later. He was a young man about twenty-eight years of age, a powerful man, in excellent health, sober, industrious, and a competent lineman, of five years’ experience, and receiving $65 a month from the Telegraph Company. ¹⁹⁶ ' It would be impossible, within any reasonable space, to examine.all these exceptions separately, but they'may be reduced to classes or groups without omitting anything essential to their proper consideration.

The first and third exceptions will be considered together. The plaintiffs’ first witness, Wm. E. Dixon, testified that he was a ground man of the Telegraph Company, and was on. the other side of the elevated structure; that Smith went to the pole to take the hand line and wire up, and he heard someone call out that a man was burning up; that he dropped the wire he was running off and ran towards the pole, and saw Smith fall. This was the whole substance of his testimony in chief, except his statement of the efforts to relieve Smith and of Smith’s age, habits and health.

On cross-examination he said: “I didn’t see what wire he came in contact with until after he had been killed. I looked at some of the wires, from the ground, after the accident, and I looked up.” He was then asked, “Standing on the ground and looking up, what, if anything, did you observe as to the condition of the wires?” and plaintiffs’ objection to this question was sustained. He was next asked,, “When did you make this examination of the wires which you. have just mentioned; how soon after the fall of Mr. Smith ?”’ and this was also excluded on plaintiffs’ objection on the ground in both exceptions that this was not proper cross-examination, as it referred to matters in no way connected with the direct examination. The evident purpose of these questions was to elicit from the witness, without making him a witness for the defendant, a statement that he saw from the ground that the insulation of these wires had been cut away near the pole.

Ho inquiry had been made in his direct examination as to the condition of these wires, and no statement relating to the wires had heen made by him in his testimony in chief. He knew nothing about the cause of the accident, or the circumstances attending it, except that he saw Smith fall. This is not like the case of Duttera v. Babylon, 83 Md. 546 , cited in appellant’s brief, where the witness,. ¹⁹⁷ after testifying to the drawing, execution and delivery of a single bill, was allowed to be asked on cross-examination, who was present at that time and what was said by the maker of the bill, because these things were details of the essence of the very transaction to which-he testified in chief. The latest case in this Court in which this question has been considered is Black v. Bank of Westminster, 96 Md. 399 , in which was approved the liberal rule laid down in Jones on Evidence, Sec. 821, also cited in appellant’s brief, but the Court there said much must be left to the discretion of the presiding judge in the determination of this question, and adopted the language of Mr. Jones in the same section, “that unless a trial Court should so far overstep the bounds as to admit that in cross-examination which clearly has no connection with the direct testimony, an appellate Court would not be justified in reversing a judgment for such cause, especially where the cross-examination is upon facts competent to be proved under the issues in the case.” This discretion should be, and is, the same, whether in permitting or refusing such cross-examination, and it is obvious that in this case, under the issues raised, the fact apparently sought to be proved in cross-examination, was capable of proof, if a fact, either by calling Dixon as a witness for defendant, or by other witnesses who had knowledge of the condition of the wires on this pole.

The good sense of the rule thus announced by Mr. Jones, and approved by this Court, is apparent in this case from the fact that the defendant subsequently proved by AY. T. Russell, superintendent of the distribution of the electrical part of defendant’s business, that he went to this pole next morning, and that from the ground he could see that the insulation had been removed from these wires. AATe discover no error in these rulings. The next group of exceptions embraces the 3, 4, 11, 12, 13, 14, 15, 31, and 36 exceptions.

These all arose upon questions, the object of which was to draw from the witnesses their inferences as to the extent of the knowledge that the deceased, as an experienced lineman, had, or ought to have ¹⁹⁸ had, as to the danger of these wires. One or two of these exceptions will serve to illustrate all. In the third, the witness Dixon had said on cross-examination: “Of course he (the deceased) was familiar in a general way with electric wires.” He was then asked, “And he knew the danger of wires with a high current', didn’t he?” . In the fourteenth.

Eyler on cross-examination had said that he had examined the insulation on the wire in question, and that it was only weather-proof insulation, and not pure rubber covering, and he was then asked: “Could not any lineman tell it by examination?” In the thirty-sixth, Russell, a witness for defendant, in his direct examination said it was dangerous to stand on a dry pole and handle alternating current wires without rubber gloves, and that he would fire any man who would do so. He was then asked, “Does not every experienced lineman know of that danger?” In all this group of exceptions the witnesses were asked to express their opinions on the very questions the jury were to decide in making up their verdict. It is carrying the theory of expert testimony too far to hold that they may express an opinion upon every issue arising in a case involving the technical knowledge and experience of a party to the cause. In 17 Cyc. 152, 153, it is said that where an inference as to a mental state rests merely in the opinion or belief of the witness, without any other basis for such inference, he cannot be permitted to testify to the existence of such mental state, and the author of the article says, “This is true of Icriowledge, understanding, and other mental states of another person, or of what entered into his consciousness by means of hearing, vision or other faculty.” In Union Pac.

R. R. Co. v. O’Brien, 161 U. S. 451 , where the widow of a locomotive engineer sued for damages sustained by his death caused by frequent accumulations of sand upon the track derailing the train, another engineer familiar with the road was asked whether the engineers of the road were aware of these frequent accumulations and of the danger thereby created, but the question was held inadmissible. “The answer would have been purely an inference based on facts previously ¹⁹⁹ proved, and an inference which it was for the jury to draw from those facts.” We find no error in these rulings. The next group embraces the 5, 6, 7, 8, 9, 19, 22, 23, 24 and 25 exceptions. These all relate to the use of certain photographs of the cable pole in question which were admitted in evidenca It does not distinctly appear from the appellant’s brief upon what ground these exceptions were taken, but the use of photographs “wherever it is important to describe a person, place, or thing, in a civil or criminal proceeding, for the purpose of explaining and applying the evidence” (77 Cyc., 414) is so well established and so fully recognized in our own decisions, that we assume the objection must have been not generally to their use in the case, but rather to their method of introduction. It is a matter of course that “photographs must be shown by some extrinsic evidence to be correct representations of the place or subject as it existed at the time involved in the controversy.” 17 Cyc., supra.

Perhaps the most usual method of verification is by the oath of the photographer himself, but this is obviously sometimes impossible, and to declare it the exclusive method when the photographer is living, would be to establish an unreasonable requirement. The authors of the árdele above quoted say, “The photograph, however, need not be verified by the oath of the photographer taking it; the foundation of its introduction may be laid by any one who testifies to its correctness as a representation or likeness.” As to whether a photograph is sufficiently verified, or is practically instructive, the question is a preliminary question, for the Court, and while there is some diversity of authority as to whether the determination of the Court in this respect is open to review or not, we think the weight of authority is that this discretion is not the subject of exception unless it is plainly exercised in an arbitrary manner. It was so held in Van Houten v. Moss, 162 Mass, 414; in Jameson v. Weld, 93 Maine, 345, and in Pritchard v. Austin, 69 N. H. 367. In the case before us, one of the two photographs admitted in evidence was shown by the witness, Eyler, to have been ²⁰⁰ ■taken in Ms presence and to be a correct representation- of the pole and wires, and the other was admitted' without objection by the defendant.

In all such cases, if there is evidence of changes in the condition or surroundings of the object since the accident, this may lead to the exclusion of the photograph, and should do so, where the substantial identity of the conditions has not been preserved.' - In this case, there is no such evidence and we find no ez’or in these exceptions.- The next group embraces the 10, 17, 18, 20, 21 and 32 ■exceptions. These all arose upon objection to questions put by the -plaintiffs to their witnesses about the re-taping of the bare places upon the wire with which Smith came in contact, and the adjacent wires of the defendant upon that cross-arm, after the- accident, the objections of the defendant in each instance being overruled. These objections were based 'upon the generally accepted principle that evidence of subsequent repairs or precautions is not admissible to show a negligent condition at the time of the accident, a principle which has been approved in this State. If that were the purpose of these questions, the objections would be well founded, but we think' it is quite clear such was- not their purpose nor effect.

It was in evidence that the insulation of these wires had not worn off by lapse of time or exposure to weather*, but had been cleanly cut in the same manner and for about the samé space from the pole, on all these wires. This certainly tended to prove that the cutting was not done by a trespasser, but by some one acting under a definite purpose. There was also evidence that it is necessary for electric companies from time to time to test their high current wires, and that to do this it is necessary to bare the wire at the point of testing, and this tended to show that the cutling was done by the 'defendant for the purposes of testing. If so done, the defendant’s agents in charge of these wires, were negligent in not replacing the insulation immediately upon completing the tests.

This is not the case of an accident occurring without apparent negligence on the part of the defendant, and ²⁰¹ where the plaintiff seeks to fix the charge of negligence by mere proof of subsequent repairs or precautions. This is precisely a case coming within the qualification of the general rule stated in 21 Amer. and Eng. Enc. of Law, 2nd Edition, page 522, where it. is said, “evidence of subsequent changes, though it may be in the way of repairs or additional precautions, is admissible when fairly tending to show the actual conditions existing at the time of the injuries.” We are of opinion this evidence was properly admitted. The sixteenth exception arose thus: It had been shown on cross-examination that the Telegraph Company furnished its linemen with rubber gloves, and that there was a pair in the gang Smith was working with, but he did not have them on at that time.

Counsel for plaintiff then upon re-examination' asked Eyler whether it was customary or general to use rubber gloves in doing such work. This was objected to, but the objection was overruled, and the witness answered, “not unless it was a very had rainy day,” and further testified that it was a perfectly clear, dry day when Smith was killed. We unders"and that the question asked for the general custom in that line of work, in respect to the use of rubber gloves, not the special custom of the linemen of the Telegraph Company in Baltimore. The custom of the party injured, or even of the particular force of which he was a member, cannot be made the criterion of negligence.

Such a custom may be a negligent custom, and the issue in accident cases of this character always is whether the particular conduct complained of was negligent. But there seems to be a distinction in this respect between the general custom prevailing in a calling, occupation, or trade, and the custom prevailing in a particular organization, or locality. In 7 Amer. and Eng. Enc. of Law, 378, it is said: “The only test by which it can be determined whether ordinary care has been used or omitted in any particular case is the test of negligence in general, which may be formulated thus: There has been no want of ordinary care, when, under all the circumstances and surroundings of the case, the person injured, or those whose neg ²⁰² ligence is imputable to him, did or omitted nothing which an ordinarily careful and prudent person would not have done or omitted.” And in 21 Amer. and Eng.

Enc. of Law, 524, it is said, “if the act or omission was pursuant to a known custom or usage observed by persons engaged in the particular business, without injurious results, it is proper to consider this circumstance in determining what the person should have foreseen.” The principle thus enunciated commends itself as rational and sound. It can scracely be doubted that if it had been asked whether it was customary or general with ordinarily careful and prudent linemen to use rubber gloves in doing such work, that the question would