Potomac Edison Co. v. State

Offutt, J., delivered the opinion of the Court. This case was tried twice in the Circuit Court for Washington County. The first trial resulted in a judgment on a directed verdict for the defendant, which was reversed on appeal. State, use of Hoffman, v. Potomac Edison Co., 166 Md. 138 , 170 A. 568 .

The second resulted in a verdict for the plaintiffs, and this appeal is from the judgment on that verdict. The case is this: Samuel Merle Hoffman, herein called Merle, a young man nineteen years of age, was electrocuted on September 19th, 1932, by coming too close to a heavily charged guy wire stretched across a public highway near Big Pool Station on the Western Maryland Railroad in Washington County, Maryland. He was employed at the time by his uncle Joseph M. Hoffman, referred to herein as Joseph Hoffman, who was engaged in ¹⁵⁹ the well drilling business. In connection with that work Joseph Hoffman used a well drilling machine mounted on a truck.

At about 8.30 o’clock on the morning of the day of the accident, he was driving the truck in an easterly direction over a road known as the Cannery Road, which intersected a public highway known as the State Road, at a point where that road turned south and was carried by a bridge over the tracks of the Western Maryland Railroad, which paralleled the Cannery Road. Near the southwest corner of that intersection, and north of the railroad, was a pole carrying a cross-arm, on which were strung three high-tension transmission wires of the Potomac Edison Company, which ran from it to another pole on the south side of the railroad tracks. A guy wire attached to the pole north of the railroad was stretched diagonally across the intersection and fastened to a tree in a field north of the Cannery Road. As Joseph Hoffman reached the intersection, the superstructure of the well-digging machine, mounted on the truck which he was driving, became entangled with the guy wire, and the energy of the moving machine exerted against the guy wire broke the pole to which the guy wire was attached, so that it fell across the truck and broke one or more of the transmission wires.

When that occurred, Merle Hoffman, who was following the truck in a smaller car, stopped, got out, and was said to have climbed on the truck and disengaged the guy wire. After that, and after he had alighted from the truck, in attempting to pass around on the north side of it, he came in contact with or so near to the sagging guy wire that he received the shock which killed him. At the close of the whole case the plaintiffs offered a damage prayer and an apportionment prayer, which were granted, and the defendant eleven prayers, of which the C, D, fourth, sixth and ninth were refused and the other granted. The C and D prayers were demurrer prayers, and the fourth, sixth, and ninth jury prayers.

The rulings on these prayers are the subject of the only exception submitted. ¹⁶⁰ The case was admirably tried both below and in this court. All immaterial and frivolous questions were waived or passed, so that as the case stands the only questions left for consideration are: (1) Whether upon the whole evidence before the court and jury in this case the court should have instructed the jury that Samuel Merle Hoffman was guilty of contributory negligence as a matter of law; and (2) whether the court should have granted (a) defendant’s fourth prayer, which would have instructed the jury that if, under the facts and circumstances apparent to Hoffman at the time of the accident, he should as a reasonably prudent and cautious person have thought that the guy wire “might possibly be” dangerously charged with electricity, and thereafter touched it, he was guilty of contributory negligence as a matter of law, and (b) its sixth prayer, by which the jury were to be told that if Merle touched the wire after having been warned by his uncle not to do so he was negligent as a matter of law. The plaintiff's evidence offered at the second trial differed in no material particular from that offered at the first, which is summarized in State v. Potomac Edison Co., supra. At the first trial the case was taken from the jury at the close of the plaintiffs’ case, while at this one defendant called witnesses.

The appeal from the judgment in the first trial presented two questions: (1) Whether the evidence was legally sufficient to support an inference of primary negligence; and (2) whether it permitted any rational inference other than that the injury and death of Merle Hoffman were in part, at least, caused by his own negligence. It was held in that case that the evidence was legally sufficient to permit an inference of primary negligence, and since the evidence affecting that issue was substantially the same at both trials, it is conceded that that question has been finally adjudicated. At the first trial the defendant offered no evidence, but unless the evidence which it offered at the second trial so complements that offered by the plaintiffs at both trials that the whole testimony permits no rational inference ¹⁶¹ other than that the negligence of Merle Hoffman contributed to the accident which caused his death, that question was also closed by the decision in State v. Potomac Edison Co., supra. It is not enough that the defendant’s evidence tended to contradict that offered by the plaintiffs, which was held in State v. Potomac Edison Co., supra, sufficient to permit a rational inference that the defendant’s negligence was the sole and exclusive cause of the accident, but it must have introduced some new fact or element missing at the former trial, which taken together with the plaintiffs’ evidence excluded any rational inference other than that the negligence of Merle Hoffman contributed to the accident which caused his death.

Otherwise defendant’s contention on this appeal in respect to its contributory negligence prayer would be merely a reargument of its contention in respect to a similar prayer which was considered on the former appeal. That view of the question under consideration is not disputed by the appellant, but it contends that, by its evidence offered at the second trial, it proved without contradiction new facts which completely changed the basis of the decision in the former appeal. The use of electric energy in the industries, and the arts, in communication and transportation, for lighting and for motive power, in the home, the shop, the factory, and the foundry, in the city and in the country, is so universal that at least an empirical and superficial knowledge of its dangerous qualities and characteristics must be assumed to be common to all persons of normal intelligence and experience. So that, where such a person voluntarily comes in contact with, or approaches nearer than a reasonably prudent person would, a wire or other thing which he knows, or, as a person of ordinary knowledge and experience, has reason to believe, is sufficiently charged with electricity to be dangerous, and in consequence of such contact or proximity is shocked and injured, it will be assumed as a matter of law that his own negligence contributed to the accident.

State v. Potomac Edison Co., supra, and cases there cited. ¹⁶² There is no evidence in the record in this appeal, as there was no evidence in the record in the former appeal, to show that Merle Hoffman had actual knowledge of the fact that the guy wire was charged with electric current at the time he was injured, so that the controlling question bn this appeal, as on that, is whether upon the whole evidence he was chargeable with constructive knowledge of the deadly character of the guy wire at the time of the accident. In dealing with that question it may be said that this is not one of those cases where contributory negligence is conclusively shown by the same facts which establish primary negligence, but that here contributory negligence was set up as an affirmative defense, and that the burden was upon the defendant to prove it. Consolidated Gas Co. v. Rudiger, 151 Md. 238 , 134 A. 326 ; Hopper, McGaw & Co. v. Kelly, 145 Md. 170 , 125 A. 779 ; Fletcher v. Dixon, 113 Md. 108 , 77 A. 326 . The facts upon which the decision in State v. Potomac Edison Co., supra, that Merle Hoffman was not guilty of contributory negligence as a matter of law was based, were: (1) That he had no special knowledge of the properties of electricity nor indeed any knowledge of the qualities and character of electric current not common to persons of ordinary experience; (2) that there was no proof of any visible connection between the transmission wires and the guy wire or the truck; (3) that he had handled the guy wire a short time before the injury without suffering any harm; (4) that while he had been warned that the truck was charged, he was not warned that the guy wire was charged.

The contention of appellant is that in this case it conclusively appears from its evidence (1) that there was an open, visible, and plainly apparent contact between the transmission wires and the guy wire, (2) that because of that fact it is immaterial that Merle Hoffman had previously handled the guy-wire without injury, but (3) he was in fact warned that it was charged, and (4) that after he had handled it without injury the position of the guy wire may have been changed. ¹⁶³ The testimony of the witnesses for the plaintiffs as to any contact between the guy wire and the transmission wires was negative. They were either not asked whether there was any such contact, or, if asked, said that they did not know. The evidence submitted on that point by the defendant showed that there was such a contact, that the two wires were tangled together, and that their connection was visible “from the ground” to any one standing on the railroad side of the truck, “if you looked up you could see it”; but it was not clearly shown that the wires were in the same relation at the time Merle Hoffman was injured, as they were when the witnesses who gave that testimony saw them, and in other particulars their testimony was contradicted not only by the plaintiffs’ witnesses but by other witnesses for the defendant. Joseph Hoffman testified that all of the three wires attached to the cross-arm on the pole to which the guy wire was attached were broken; that: “All three wires were severed otherwise the pole could not have fell.

I am positive about that. There was more than one wire down in the cut, all tangled up down in the cut. When I looked later around the scene of the accident certain ends of wires were sparking in the grass. These broken wires were attached to the pole next to the truck, the pole that broke.

It was still carrying wires with broken ends and these broken ends reached down into the railroad cut and were sparking there. All three lines were down in the cut, I am positive of that.” He also testified that Merle jerked the guy wire, which had been caught in a bolt head (called in the record in the former case a “bull head”), “loose,” so that it sagged down between the truck and the tree. “It was loose; he took hold and jerked it right off.” When the truck fouled the guy wire, Joseph Hoffman jumped from the truck, and when he came in contact with the ground, he received a shock, although he was clear of the truck. He then ran down the road towards the station to notify the power company to cut off the current. He left Merle in charge, told him that he (Joseph) had ¹⁶⁴ received a shock, and warned him not to touch anything, and not to let anybody else touch anything.

As Joseph was on his way to the station, he met William K. Kline, driving a horse and wagon, approaching the truck from the east apparently with the intention of driving between it and the tree, and told him not to go near it; that every thing was “hot.” Kline nevertheless continued to .approach, and to quote his testimony: “I don’t know where I was going to stop, I had no idea, may be right up close to the truck. I may have expected to go on by. The wire hung down there but I suppose you could have gone through between the truck and it, I don’t know. I don’t believe the guy wire was high enough without being lifted for me in my wagon to pass under it.

May be I wouldn’t have went by. I had already been warned by Joe Hoffman that things were hot. I wasn’t just coming as close as I could to see what was there, I wasn’t just doing that, I just kept on going. I suppose I would have stopped before I hit the wire.

I hadn’t no idea what it was doing; just driving on up there.” Kline was still approaching the truck when Merle started around it towards him, and in passing the truck came near enough to the wire to receive the shock which killed him. Roy Snyder, a schoolboy, saw Merle pull the guy wire so that it “swung down.” He also said that, while he did not know how many wires there were, they were all broken, and the broken ends attached to the guy wire pole hung down between the fence and railroad track; that those ends were smoking and burned the grass. The testimony of Leon Turner, another schoolboy, tended to corroborate that of Roy Snyder. R. A. Purnell, superintendent of tracks of the Western Maryland Railroad Company, arrived about twenty-five minutes after the accident, and at that time men from the signal maintenance department of the railroad company were engaged in removing wires from the south side of the railroad tracks.

At that time, at least two of the wires attached to the broken pole were “swinging down over the cut”, making an arc with some honeysuckle vines that were growing near the edge of the bank. ¹⁶⁵ These witnesses were all called by the plaintiffs. On behalf of the defendant, Harry T. Fahrney, line foreman of the Potomac Edison Company, said that only one of the three wires was broken, and that: “The broken wire was in contact with the guy wire on the far side of the insulation approximately fifteen or twenty inches out from this insulation. In a general way the relation of the two wires when I saw them was they were in an entanglement, all together. The entanglement of the two wires on the far side of the insulation was visible from the ground; I saw it from the ground.” He also said that he did not know whether there had been any change in the wire conditions before he arrived, but Joseph Hoffman had previously testified that so far as he knew no change had been made.

Fahrney further testified that when he arrived the guy wire was tightly wedged under a board on the truck, and that “it would have been quite a difficulty for one to have jerked it out there by himself because it was tied, wedged under the board.” He also said: “I stated that this wire was caught in about that position, somewhat back of the cab, and that it was held there tightly under the board. I can’t say whether any other raises in the surface on top than the one where the wire was caught. The fact that the truck was standing there on rubber tires would afford an explanation of the failure of Merle Hoffman to get a shock if he was on that truck and touched this wire.” He was corroborated by George Werdabaugh and Floyd H. Spiker, employees of the appellant. Werdabaugh said, in part: “I heard people representing the Western Maryland say they had changed this position.

One wire was broken; that was the wire farthest away from the truck out towards the railroad. The other two unbroken wires were right against the top of the pole; the pins had been broken and laying against the top of the pole; the two pins nearest the road broke and released the wires and the wires pulled back against the top of the pole.” George H. Hornbaker, an employee of the Western Maryland Railroad Company, said, in part: “I saw the ¹⁶⁶ short end of the broken wire at the broken pole. * * * I could see the tangled wires, see the pole lying over the truck and the wires, the broken power wires that were still attached to the pole and the guy wire in a sort of a tangled mass on top of this derrick. They were all jumbled together, the end of the broken power wire was between the top of the well digging rig and the pole, suspended, hanging over. The broken distribution wire was in contact with the guy wire; they were all tangled.

I could see that condition from the ground. There was an insulator on that guy wire that was between the tree side of this derrick and the railroad side of the derrick, and these wires were all tangled up in there. I could see they were all in contact. As I saw it, the broken distribution line was probably in contact with the guy wire in the neighborhood of a foot beyond the insulator hanging out over the edge of the tree side of that derrick.” The testimony of other witnesses in one particular or another tended to corroborate this testimony.

Considering the effect of