Eastern Shore Public Service Co. v. Corbett

Prescott, J., delivered the opinion of the Court. Suit having been instituted in the Circuit Court for Wicomico County by the plaintiff, Maurice Corbett, to his-own use and the use of his employer’s compensation carrier, to recover damages for injuries sustained by him as the consequence of an accident in which he was involved, a jury rendered a verdict of $12,500 in his favor; and the defendant, Eastern Shore Public Service Company of Maryland (hereafter referred to as the Company, or appellant), has appealed. The Company is an electrical utility serving, among other localities, Salisbury and its environs. Patrons desiring electricity for commerical use frequently apply in the form of a letter, and on occasions verbally.

As soon as the Company is notified that service is desired, its facilities are made ready to supply the electricity when called for, or likely to be used. Numerous elements enter into the rates to be charged to commercial users, such as whether or not a pole line has to be built to serve the particular customer, the quantity of electricity likely to be required, and the times when it will be so required; hence, we see there are reasons for negotiation before a final order for service to such users. During 1954, a building, the Medical Center Building, located just south of Salisbury, was under construction by a general contractor, and, in accordance with the usual practice, an application was made for “temporary service” of the type generally used by contractors for electrical appliances while they are in the process of building. The customary procedure was followed by the applicant placing a pole in the ground and attaching the necessary equipment thereto, all properly grounded for electricity.

The company then ran wires to the pole, and made available the necessary electricity. In this instance, the temporary service was begun on October 27, 1954, and was used throughout the entire construction ⁴¹⁵ period and until after the date of the accident described herein. Not being a domestic user and realizing that permanent service would be required in the future, a representative of the Medical Center had begun negotiations for commercial type of service sometime prior to October 26, 1954. These negotiations culminated in an agreement between the Company and the Medical Center on June 24, 1955.

After reaching an understanding with the patron, the Company began to prepare plans, obtain materials, and get ready generally for rendering service in accordance with the request. To fulfill the obligation entered into, the Company ran a high tension line from a high tension line then existing and running adjacent to a highway not far distant. There were about four new poles put up with wires, cross-arms, and other equipment. On the last pole, a transformer was placed to reduce the current to lower voltage for use in the building to be serviced. “Service wires” were run from this transformer to a “rack” which was attached to what is known in the trade as a “mast” all of which are described below.

Here, the Company’s property stopped. The wiring in the building was brought outside thereof to this point by the electrical contractor. The service wires did not cross the top of the building, but ran to the rack, attached to the mast, which ran along the side of the building and some 5j4 feet above the roof. They were four in number and eight inches apart; the top wire was neutral, i.e., it carried no voltage but was a “ground,” and the bottom three carried voltage when energized.

When energized, the voltage between any two of the bottom three wires was 217 volts; between any one of these wires and the mast, the voltage was 125 volts. The bottom wire was at least ten feet above the ground and twenty-nine inches above the level of the roof. The experts produced by both sides testified that, in order to get a shock, a person would have to touch any two of the bottom wires at the same time, or one of them and the mast, the neutral wire, or any other ground. There was testimony that the roof was a good insulator when dry (as it was at the time of the plaintiff’s injuries), and it was unlikely that it would operate as a ground so as to permit the current to pass through a person standing thereon. ⁴¹⁶ All agreed that contact with the mast, alone, would not produce shock.

The “rack” was a metal device with two parallel stationary standards. One standard was curved so that it would fit against a pipe or pole and the other standard was a small metal bar attached at both ends to the other standard, and on this bar were four porcelain spools. The porcelain spools acted as insulators, and were so intended that a wire could be attached to them very easily without coming in contact with metal at any point. The wires were stripped of their insulation or weatherproofing for some 8 or 10 inches from their ends, and attached to the porcelain spools or insulators by a “bail type dead end,” instead of wrapping the wire itself around the spool or porcelain insulator and fastening (and taping) the other end to the wire itself, without removing any of the insulation from the wire (the latter is called the “pigtail” method).

The dead end was a metal mechanical device made in a U-shape of a size to fit around the porcelain insulator. The wire was then inserted into, and passed several inches through, a hole in a portion of the dead end which was attached to, and closed, the open end of the U. The dead end itself was energized when the wires were. Electrical energy would not, however, go beyond the “dead ends” because the spools, or insulators, would prevent it from doing so. The mast was a four inch hollow metal cylinder that extended from the ground along side of the building to the roof and then above the level of the roof a distance of five feet four inches, being capped by a semicircular hood, obviously as a protection from the weather.

It was erected by the electrical contractor of the Medical Center; and its purpose was to act as a conduit for the electrical wires, which would conduct electricity into the building through the permanent installation, when completed. Protruding from the top of the mast were four large insulated wires, which were to be connected to the four service wires, but, due to the fact that the electrical work within the building had not been completed, were left “dangling.” After the workmen of the Company had installed the service wires, the dead ends, and the rack, the wires and the dead ⁴¹⁷ ends were energized on the morning of the accident, according to the Company’s answer to an interrogatory relative thereto. No request had been made to the Company to energize the wires. The Company did not notify the owner, the general contractor, or anyone else that current had been put into the wires; nor did it enclose the wires or place any signs on, or near, the mast giving notice that the wires were energized.

At this time, the building was, roughly, one-half completed. Although the exterior had been constructed, there was still much to be done. The line crew of the Company not only saw ladders, sandpiles, and other materials and equipment on the premises, which clearly indicated that work was still being performed upon the building, but actually saw painters, carpenters, and other workmen laboring on and about the building. On August 5, 1955, a very hot, dry day, the plaintiff, who had been painting the building for about two weeks, was working under the direction and supervision of his foreman, Walter McDorman.

Together, they were painting the outside trim work, which included the mast mentioned above. When they reached the point where the mast was located, McDorman ordered Corbett to paint it. At this time, neither of them knew that the service wires were energized; but, on the other hand, both knew the building was being temporarily supplied with electricity by an entirely different set of wires and that the electrical work on the inside of the building had not been completed, and both saw that the wires coming from the conduit had not been connected to the service wires, leading them to believe that the installation was incomplete and the wires harmless. In compliance with McDorman’s direction to paint the mast, Corbett ascended a ladder to the roof, which was about ten feet eight inches from the ground.

McDorman was working from the ladder just below Corbett, and could see him “if he looked up.” Corbett testified that he made one stroke on the mast with his brush, when he received a shock and was knocked unconscious. McDorman stated that he heard Corbett “holler,” looked up quickly and saw Corbett going one way and the paint bucket the other. Corbett landed on the roof some six to eight feet from the mast. McDorman thought he was dead, but he finally regained consciousness and, after consider ⁴¹⁸ able difficulty, McDorman got him to the hospital.

At the hospital, he was treated by Dr. Insley, who testified that Corbett “Had suffered an electric shock,” which caused him to be “thrown to the ground,” fracturing his right scapula and injuring his right shoulder. Within an hour after the accident, officials of the Company had the service wires de-energized, and they remained in that condition until October 27, 1955. It has been necessary to set forth the facts at some length due to the nature of the case and the further fact that the appellants have not only raised the usual questions presented in negligence cases, such as the insufficiency of the evidence to establish primary negligence and that the plaintiff was guilty of contributory negligence as a matter of law, but several others, besides. I The appellant argues that the plaintiff failed to prove any primary negligence upon its part.

First, it claims the plaintiff’s own “uncontradicted, unequivocal” testimony showed that none of its instrumentalities caused the injuries to the plaintiff. This claim is based upon the fact that the plaintiff, on cross-examination, stated that he did not touch the wires of the defendant at any point, nor did he touch the mast head with anything except his paint brush; and the experts had testified appellee could only receive a shock by touching any two of the bottom three wires, or any one of the bottom three wires and a ground. A few States have held that a party to a suit is bound by a definite statement of fact within his knowledge, objective or subjective, as against not only his own conflicting testimony, but that of his own witnesses, that of the other party’s witnesses, and that of the other party, attempting to rationalize this strict rule by relating it to the doctrine of judicial admissions or admissions of counsel. The cases are collected in an annotation in 169 A.E.R., beginning at page 815.

But the same annotation, at page 804, states the older practice and the prevailing rule is, that, where the self-injuring testimony of a party falls short of a quasi-judicial admission and is contradicted by other evidence, it is to be treated by the court as merely that of a witness, to be considered as evidence by the ⁴¹⁹ trier of facts in arriving at a conclusion on the whole case. And this is particularly true where the testimony of a party relates, not to a fact peculiarly within his knowledge and as to which he could not be mistaken, but is in the nature of an estimate or opinion as to which he may be honestly mistaken; he does not unequivocally concede that the fact is in accord with the opinion expressed, and there is no injustice in permitting the court to consider the other evidence in the case, and determine from all the evidence what the actual facts are. Ibid, p. 803. Cf. 9 Wigmore, Evidence, § 2594 a (3rd Ed.).

The appellant’s argument in this respect loses sight of the fact that the plaintiff had received only a grade-school education, had spent his entire life working as a waterman or a painter, and did not express himself so exactly, precisely, and articulately as a person of higher education or wider business experience. The plaintiff’s evidence disclosed that the electrical current in appellant’s wires was the only current in the vicinity of where the plaintiff was working. The plaintiff testified flatly and unequivocally that he received an electrical shock. His foreman testified he heard the plaintiff yell and saw him fall away from the mast to the roof.

The foreman thought he was dead. Dr. Insley, who saw the plaintiff at the hospital very shortly after he was injured, stated that he had sustained an electrical shock. And the plaintiff summed up1 his recollection of the accident in this manner: “The only thing I know when .1 made the first stroke with my brush [when starting to paint the mast] all I remember I was in a flame of fire and knocked unconscious. After that I knew nothing for a short period of time.

Whatever caused it, I don’t know.” A consideration of the above testimony shows, we think, that the trial judge acted properly in submitting to the jury the question of whether the plaintiff had received an electric shock from the appellant’s energized wires, and was injured as a result thereof. Cf. United Rys. Co. v. Corbin, 109 Md. 442 , 72 A. 606 ; Detroit Edison Co. v. Ewing, 122 F. 2d 852 (C. A., 6th).

Pursuing the question of primary negligence, the appellant contends that it complied with the provisions of the National Electric Code (Safety Code), and there was in ⁴²⁰ sufficient evidence in the case to show that it could reasonably foresee that a workman on the building would make contact with its line; hence it was free of negligence. The appellant did offer testimony to the effect that its installation of the service wires was in accord with the provisions of the Safety Code. However, the plaintiff offered William C. Eeige as an expert witness. He had had nearly forty years’ experience' in the electrical field; was a licensed professional engineer in four states; and had been a consulting electrical engineer since 1945.

He was licensed master electrician in Baltimore, and had been employed by the Gas and Electric Company of that City for 22 years from 1923. He stated that in all of his experience in the electrical field, he had never seen a “dead end” installation similar to that made by the defendant in this case; that the most conventional method of installation was to carry the insulated wires around the spools on the rack and then to wrap the ends, pigtail fashion, around the wires, taping the ends for insulating purposes. And if the installation had been made in this fashion, no one could have received an electrical shock from an accidental contact with the wire. Furthermore, from his inspection of the service wires involved herein, he knew of no reason why they “should not have been insulated.” He also stated that although the installation made by the defendant was neither “electrically or mechanically” in violation of the Safety Code, in his opinion it was an improper one from a safety point of view; that Section 1113 of the Safety Code requires that electrical equipment operating at 50 volts or more should be guarded against accidental contact by enclosure, or by locating the equipment where it will not be readily accessible to unqualified persons; and he thought the installation terminated too close to the roof.

He also testified the customary time in the utility industry to energize service drop wires leading to a new building is when the meter is installed and connected. Of course, the Safety Code has not been given legislative sanction in Maryland, as it has been in some states. (Where given such sanction, it is generally provided that compliance with the Safety Code is prima facie evidence of a lack of negligence. Berry v. Atlantic Coast Line Ry.

Co., 273 F. 2d ⁴²¹ 572, 577 [C. A., 4th, I960]). We do not deem it necessary nor desirable under the facts of this case to express any opinion relative thereto such as the Court did in Smith v. Iowa Public Service Co., 6 N. W. 2d 123 (Iowa), for we have set forth Mr. Feige’s testimony somewhat at length to show that the appellant’s claim that its installation fully complied with the provisions of the Safety Code and met all of the usual and customary requirements in the utility industry was seriously disputed and contested. The plaintiff’s evidence was sufficient, we think, to take the case to the jury on the question of primary negligence. In the early case of Cumberland v. Lottig, 95 Md. 42 , 51 A. 841 , where a mother, after dark, had used a step-ladder to reach a trap-door that led to a seldom used roof of her home for the purpose of watching a theatrical performance on the opposite side of the street, and had taken with her her infant son about six years old, who was injured by coming in contact with a low hanging electrical wire running across the roof, this Court, after stating that the mother and/or the child were guilty of contributory negligence as a matter of law, pointed out the difference between that case and Brown v. The Edison Elec.

Co., 90 Md. 400 , 45 A. 182 , where a boy was directed by his employer to go upon the roof of a store to clean it and the rain-spout, and while thus engaged, he came in contact with a low strung electric wire and was injured. The Court stated that with reference to the Brown case, “the very nature of the business (supplying electricity) thus conducted by the Electric Company imposed upon it a legal duty to see that its wires when strung where persons were liable to come in contact with them were properly placed and insulated with reference to the safety of such persons—and that this was especially so in reference to a person who in the exercise of a lawful occupation in a place where he had a legal right to be, was liable to be injured by contact with the wires.” This language seems to be particularly apposite to the facts of the case at bar. 1 ⁴²² The Medical Center Building, at the time of the injury to Corbett, was only about fifty per cent complete. Corbett was in a place where he had a lawful right to be, performing the work of his daily occupation. The Company’s employees knew there were laborers and painters still working upon the building.

The service wires, with the dangling unconnected wires coming from the mast head and the well-known fact of the temporary service hook-up, did not, as a matter of law, give notice to an ordinarily careful and prudent person that they carried electrical current. Yet, the Company’s employees energized the wires without giving notice to anyone. Cf. Conowingo Power Co. v. State of Maryland, 120 F. 2d 870 (C. A., 4th); Southern Pacific Co. v. McCready, 47 F. 2d 673 (C. A., 9th); Ashby v. Philadelphia Elec.

Co., 195 A. 887 (Pa.). And notwithstanding the lowest service wire was only 29 inches above the roof, the dead-ends were not insulated, 2 nor were they protected against accidental contact by enclosure or otherwise. Cf. Section 1113 of the Safety Code.

These factors, namely, the proper location of the wires, their effective insulation or enclosure if the location were where people, lawfully and legally, were likely to go, whether for work, business or pleasure, and whether notice should have been given by the Company when it energized the wires were proper ones, under the facts of this case, for the jury’s consideration in determining whether due and proper diligence, under the circumstances, had been exercised by the Company in the transmission of an agency with such dangerous and elusive propensities as electricity. And we think the facts, as we have stated them above, were sufficient to support a finding by the jury that the injury to the plaintiff was reasonably foreseeable by the Company. Aleshire v. State, 225 Md. 355, 170 A. 2d 758 . II In its next assignment of error the appellant urges: (a) that the trial court should have granted its request for a ⁴²³ directed verdict on the ground that the plaintiff had been guilty of contributory negligence as a matter of law; and (b), if he received a shock from its wires, he had “assumed the risk.” What we said under I above partially answers these contentions.

(a) A reading of the Maryland cases 3 leaves little, if any, doubt that one, who receives injuries as a result of a negligent contact with a wire conducting electrical current, which he knew, or in the exercise of ordinary care and caution should have known, was dangerous and/or possibly deadly, cannot recover against the owner of the wire, for, where such facts exist, negligence will be presumed as a matter of law. And, as electricity is so widely, almost universally, used today, it is common knowledge that it is usually dangerous to a certain degree. Potomac Edison Co. v. State, 168 Md. 156 , 177 A. 163 . But the question for determination here is not whether the plaintiff was negligent in touching or coming near to a wire which he knew or, in the exercise of due diligence, should have known to be dangerous, but, whether under the circumstances related above, he was, as a matter of law, bound to know that it was dangerous.

State v. Potomac Edison Co., 166 Md. 138 , 170 A. 568 . Cf. Conowingo Power Co. v. State, 120 F. 2d 870 (C. A. 4th) ; Detroit Edison Co. v. Ewing, 122 F. 2d 852 (C. A. 6th). It is undisputed that the plaintiff had no actual knowledge that the service wires were energized.

The testimony further discloses that he knew that electricity to the building under construction was coming from a temporary line; that the building was under construction and would not be completed for quite a long period of time; that he received specific instructions from his foreman to paint the mast; that he knew the electrical contractor was still working in the interior of the building, and his (the electrical contractor’s) work was not complete and was not ready to be used in connection ⁴²⁴ with the permanent wiring; and that he observed the wires hanging loose and unconnected from the mast head. Under these circumstances and those that we have set forth above in more detail, we hold that the plaintiff should