Denial by the trial court of a motion to strike from the
complaint allegations as to exemplary damages does not harm
defendant if the court instructs the jury that only compensatory,
and not exemplary, damages can be recovered.
Where the parties, with the assent of the court, unite in trying
a case on the theory that a particular matter is within the issues,
that theory cannot be rejected when the case is in the appellate
court for review. The doctrine of
res ipsa loquitur is
that, when a thing which causes injury, without fault of the person
injured, is shown to be under the exclusive control of defendant,
and would not cause the damage in ordinary course if the party in
control used proper care, it affords reasonable evidence, in
absence of an explanation, that the injury arose from defendant's
want of care.
The doctrine of
res ipsa loquitur was rightly applied
against defendant electric light company in the case of a person
injured while adjusting an electric light in his residence by an
electric shock transmitted
Page 224 U. S. 90
from the outside wire of the defendant company entirely without
fault on his part and in manner which could not have happened had
such outside wire been in proper condition.
Although an instruction may be subject to criticism standing
alone, it may be unobjectionable if read in the light of what
preceded and what followed it.
4 P.R. 356 affirmed.
The facts are stated in the opinion.
Page 224 U. S. 94
MR. JUSTICE VAN DEVANTER delivered the opinion of the Court.
The judgment here to be reviewed is one awarding damages to a
widow for the death of her husband, caused by an electric shock
received while he was adjusting an incandescent light in his
residence in San Juan, Porto Rico. The case presented by the
evidence produced upon the trial, which was to the court and a
jury, was this:
The defendant was supplying the inhabitants of San Juan with
electricity for lighting purposes, and had engaged to deliver at
the deceased's residence a current suitable for lighting it. The
electricity was conveyed along the street in front of his residence
by a primary wire carrying a current of 2,200 volts, and by means
of parallel or multiple converters the current was reduced to 110
volts and then carried to his residence and those of his neighbors
by a secondary wire. These wires and converters were owned and
controlled by the defendant, and the wiring and fixtures in the
residence of the deceased were owned and controlled by him. On the
occasion in question, the current carried by the secondary wire,
and by it communicated to the wiring in the residence of the
deceased, became in some way greatly and dangerously increased in
voltage, and it was because of this that he received the fatal
stock. Had this current been maintained at substantially its normal
standard, as was contemplated, it would not, in the circumstances,
have done him any injury. He was not responsible for the increased
voltage, and neither did he have reason to expect it.
There were no outside electric wires in that vicinity save those
of the defendant, and the increased and dangerous current could
only have come from its primary wire. About the time of the shock
to the deceased, two of his neighbors had trouble with a like
current in their houses. One received a shock which felled him to
the
Page 224 U. S. 95
floor and rendered him unconscious, and the other found the
wires in his shop flashing, and on coming in contact with one of
them was made unconscious and burned so that he was taken to a
hospital for treatment. Shortly thereafter it was found that the
ground or protecting wire leading from one of the converters to the
earth was broken or severed, and that the other converter was
heated and out of order, the insulation being charred.
There was testimony tending to show that, on the day preceding
these shocks, the primary and secondary wires and the converters
had been examined by the defendant's inspector and found in good
condition; but this testimony was greatly impaired upon the
cross-examination of the inspector, who then said:
"My inspection consisted in seeing that the poles and overhead
trolley lines were in good condition. I just walked along and
examined each pole, but did not climb them. When I came to the
transformer [converter] I did not climb the pole and didn't look at
the fuses. . . . No, sir; on that day I didn't look at the
transformer any closer than I could see it from the ground. . . .
There is no way you can tell from looking at the outside of the
transformer whether it is in good condition or not."
There was also testimony tending to show that the wiring in the
deceased's residence was not properly insulated or in good
condition, but there was no claim that the defendant was
responsible for this, and neither was there any evidence that the
fatal shock resulted therefrom.
Much of the testimony was addressed to the questions whether a
current of unusual and dangerous voltage was communicated from the
defendant's wires to the wiring in the residence of the deceased,
and, if so, whether this resulted from negligence of the defendant
in failing to exercise appropriate care in the maintenance and
inspection of its wires and converters. This testimony was
Page 224 U. S. 96
admitted without objection, both parties tacitly treating it as
within the issues.
That the fatal shock resulted, without fault of the deceased,
from an unusual and dangerous current carried to his residence by
the wires of the defendant, was so conclusively established by the
evidence that that part of the case might well have been covered by
a peremptory direction to the jury, leaving them to determine,
under appropriate instructions, the question of the defendant's
negligence, and the amount, if any, which the plaintiff was
entitled to recover.
With this statement of the case presented upon the trial, we
come to the rulings which are assigned as error.
1. A motion to strike from the complaint a paragraph relating in
part to exemplary damages was denied because not all of the
paragraph was deemed objectionable, and complaint is made of that
ruling. But it is not necessary to consider its propriety. Even if
wrong, it did the defendant no harm, because the court instructed
the jury that there could be no recovery of exemplary damages, but
only such as were compensatory.
2. It is urged that the negligence charged in the complaint
related only to the condition of the wiring inside the residence of
the deceased, and therefore that the court erred in permitting a
recovery on the theory that the defendant was negligent in respect
of the maintenance and care of the wires and converters outside.
This contention must fail. While the complaint was not drafted with
commendable precision, and, if critically examined, might be
regarded as leaving it uncertain whether the negligence charged
related to the wiring inside or to that outside, whereby the
current was supplied, there was no objection to this uncertainty in
the court below. On the contrary, the trial proceeded, as we have
seen, upon the theory that the question whether the defendant had
failed to exercise appropriate care in the maintenance and
inspection
Page 224 U. S. 97
of its outside wires and converters was within the issues. Each
party, without objection from the other, introduced evidence
bearing upon that question, and when it was submitted to the jury,
there was no exception upon the ground of a variance. Effect must
therefore be given to the well settled rule that, where the
parties, with the assent of the court, unite in trying a case on
the theory that a particular matter is within the issues, that
theory cannot be rejected when the case comes before an appellate
court for review.
3. In its charge to the jury, the court explained, in substance,
that a company supplying electricity for lighting purposes, and
engaging with individuals to deliver a suitable current at their
residences and places of business, over its own system of wires and
appliances, is bound to exercise such control over the subtle and
perilous agency with which it is dealing, and to take such
precautions in the maintenance and inspection of its wires and
appliances, as are reasonably essential to prevent an excessive and
dangerous current from passing from its supply wires to the service
wires of its patrons, and then said:
"And you are further instructed that, if you believe from a
preponderance of the evidence that the deceased came to his death
while innocently and without knowledge of any danger using an
incandescent light, the current for which was furnished, or to
which the electricity was supplied, by the defendant company, the
presumption is that the electric company was negligent, and it
devolves upon it to show that the surplus and dangerous current
that came over the wires did not occur from any negligent act on
its part."
Exception to this instruction was taken upon the ground that it
erroneously applied the doctrine of
res ipsa loquitur.
While recognizing that that doctrine is of restricted scope, and
when misapplied is calculated to operate prejudicially, we think
there was no error in its application in this instance.
Page 224 U. S. 98
The deceased was without fault. The defendant's primary wire was
carrying a current of high and deadly voltage. Its secondary wire
conveyed to his residence an excessive and dangerous current which
could only have come from its primary wire. Had its wires and
converters been in proper condition, the excessive and dangerous
current would not have been communicated to its secondary wire, and
the injury would not have occurred. These wires and converters were
exclusively under its control, and it was charged with the
continuing duty of taking reasonable precautions, proportioned to
the danger to be apprehended, to maintain them in proper condition.
In the ordinary or usual course of things, the injury would not
have occurred had that duty been performed. Not only did the injury
occur, but immediately thereafter both converters were found to be
out of order, one being heated and its insulation charred, and the
protecting ground wire of the other being broken or severed.
Besides, the defendant engaged to supply a current of low voltage,
reasonably safe and suitable for lighting, while the current
delivered on this occasion was of high voltage, extremely dangerous
and unsuitable for lighting purposes. These circumstances pointed
so persuasively to negligence on its part that it was not too much
to call upon if for an explanation. Of course, if the cause of the
injury was one which it could not have foreseen and guarded
against, it was not culpable; but, in the absence of that or some
other explanation, there was enough to justify the jury in finding
it culpable. This was all that was meant by the instruction,
reasonably interpreted. It was not a model, and, if it stood alone,
might be subject to criticism. But, if read in the light of what
preceded and followed it, and of the case before the jury, it was
unobjectionable. When so read, it rightly declared and applied the
doctrine of
res ipsa loquitur, which is, when a thing
which causes injury, without fault of the injured person, is shown
to be under
Page 224 U. S. 99
the exclusive control of the defendant, and the injury is such
as in the ordinary course of things does not occur if the one
having such control uses proper care, it affords reasonable
evidence, in the absence of an explanation, that the injury arose
from the defendant's want of care.
Inland & Seaboard
Coasting Co. v. Tolson, 139 U. S. 551,
139 U. S. 554;
Zahniser v. Pennsylvania Torpedo Co., 190 Pa. 350;
Alexander v. Nanticoke Light Co., 209 Pa. 571;
Trenton
Passenger Railway Co. v. Cooper, 60 N.J.L. 219;
Newark
Electric Co. v. Ruddy, 62 N.J.L. 505; 2 Cooley, Torts, 3d ed.
1424; 4 Wigmore on Evidence ยง 2509.
4. Complaint is made of the court's refusal to give several
instructions requested by the defendant. All have been examined,
and we find no error in their refusal. Some were in substance
incorporated in the charge, some were inapplicable to the case
before the jury, and others did not correctly state the law.
Judgment affirmed.