State v. Eastern Shore Gas & Electric Co.

ITbkeb, J., delivered the opinion of the Court. The equitable plaintiffs are the widow and children of Russell J. Bell, who was killed when an aerial wire attached to a pole which he was erecting on a lot of ground in Denton came in contact with a high tension electric wire maintained by the defendant corporation. A verdict for the defendant was directed by the trial court on the ground that the decedent was conclusively shown by the uncontradicted evidence to have contributed by his own negligence to his fatal injury. That ruling is the subject of one of the two exceptions taken at the trial, the other being concerned with the exclusion of certain testimony.

For a number of years prior to his death, which occurred on FTovember 26th, 1925, Mr. Bell occupied as lessee a house and lot fronting on Gay Street in Denton, and he used for garden purposes an adjacent vacant lot of his lessor, extending from the street to an alley in the rear, on the other side of which was located the appellee’s substation, where its electric current, transmitted from its generating plant at Laurel, Delaware, was received and reduced to a lower voltage for distribution. The current was conveyed to the substation by three high tension wires suspended on a line of poles, from one of which, standing on Gay Street opposite the end of the vacant lot cultivated by Mr. Bell, the wires passed over the lot at a height of twenty-eight feet and five inches, to a pole within the appellee’s substation inclosure. An easement for the construction and maintenance of the wires over the lot was granted by its owner to the appellee in February, 1923, the line having been erected in the fall of 1922. It carried a current of 23,000 volts.

The wires were not insulated, and the proof was undisputed that the high voltage ⁶⁶² made their insulation impracticable, but the fact that they were uninsulated was readily observable from the ground, as testified by witnesses for the plaintiffs. The place where Mr. Bell dug the hole in which to plant the aerial pole was directly under the high tension wires, and about ten feet from the alley beyond and beside which the substation was located. The pole was thirty feet and four inches long, and, when it was raised to a vertical position, its top, with the attached aerial wire trailing to the ground and in contact with Mr. Bell’s body, struck one of the electric wires, and his instant death resulted. For the purposes of the trial court’s action in withdrawing the case from the jury on the ground of contributory negligence, it was assumed that there may have been evidence from which primary negligence on the part of the defendant might be inferred.

It is asserted and denied that such an inference can be rationally drawn from the testimony. It would be difficult upon this record to sustain the theory of primary negligence, but there is no necessity for us to make a ruling, or to discuss the grounds of the contentions, upon that subject, because the evidence conclusively proves that the unfortunate victim of the accident exposed himself by his own negligence to that catastrophe. The testimony leaves no room for doubt as to Mr. Bell’s knowledge of the presence and dangerous voltage of the electric transmission line with which his aerial pole tad wire were brought in contact. The line had been constructed, and maintained for three years, during the period of his use of the lot over which it was suspended and of his occupancy of the adjacent dwelling.

The high tension wires forming the transmission line, after passing over the full length of the lot, connected with transformers which stood in plain view Just beyond the alley separating the lot used by Mr. Bell from the substation premises. On one of the transformers was a sign-board, about three feet in length by eighteen inches in width, on which was the warning: “Danger, 23,000 volts.” The sign was about eight feet above the ground and could be seen, from the lot on the other side of the alley, over ⁶⁶³ the picket fence by which the substation area was inclosed. Prior to the erection of the line transmitting the electric current from a distant power