
    The Ohio Power Co. v. Fittro, Admx.
    (Decided May 1, 1930.)
    
      
      Messrs. Price & Price, and Messrs. Herb ruck, Shettler, Melchoir <& Roach, for plaintiff in error.
    
      Mr. Roy Warren Roof, Mr. H. D. Lease, and Mr. Garter Schwemmer, for defendant in error.
   JTJSTiCE, J.

The action below was by the administratrix of Fred Fittro, deceased, as plaintiff, against the Ohio Power Company and the Suburban Power Company, as defendants, for recovery under Sections 10770 and 10772, General Code. Upon trial, at the close of plaintiff’s evidence in chief, upon motion, a verdict was entered by direction for the defendant, the Suburban Power Company, and, at the close of all the evidence, upon submission of the cause to the jury, a verdict was returned by it for plaintiff and against the defendant, the Ohio Power Company, in the sum of $14,000, upon which the trial court, after overruling a motion for a new trial, pronounced a judgment. The Ohio Power Company prosecutes error here to reverse that judgment.

The deceased was a married man, forty-two years of age, in good health, the father of two children, Marylin and Robert, of the age of six and nine years,, respectively, a plumber by trade, with an annual net earning power of approximately $1,500, and at the time of his death he was the sole support of his wife and children, who lived with him in the village of Mt. Victory, Ohio.

The Suburban Power Company was a distributor of electrical energy in the village of Mt. Victory and its surrounding territory. One of its lines ran between said village and the village of West Mansfield, and was located along the east side of a public road, commonly known as the Mt. Victory-West Mansfield highway. The electrical energy for this line was purchased by the Suburban Power Company from the Ohio Power Company, who made delivery of it to the Suburban Power Company at the south corporate limits of the city of Kenton, Ohio. The voltage of this line was 6,600.

On the 24th day of June, 1928, the day Fred Fittro was killed, about the hour of 3 o’clock p. m., one of the poles of the Mt. Victory-West Mansfield line was struck by an automobile with sufficient force to break off the pole near the ground, thereby causing the wires on said pole to sag within five or six feet of the ground. The automobile went into the ditch near said pole. A Mr. Pearl Johnson, who was near by, learning of the accident, went to the place where the automobile was situated, and, in entering the ditch for the purpose of rendering assistance, passed under the wires, and in some manner came in contact with them and was electrocuted. The Ohio Power Company was told of Johnson’s electrocution, and at once shut off the current at the transformer at the south corporation line of the city of Kenton. After Johnson’s body and after the automobile had been removed from the ditch, a Mr. F. H. Yoakum, a garageman at Mt. Victory, phoned to an employee of the Ohio Power Company at Kenton, and told him that the line was clear and the wires were ten feet from the ground. Thereupon the Ohio Power Company again turned on the current.

The Ohio Power Company did not examine, repair, or guard the wires at the place of the accident prior to turning on the current, nor did it place any warning signs thereat. It had rained a short time before the accident.

The decedent, Fred Fittro, learning of Johnson’s death, went to the scene of the accident. He reached there about 6 o ’clock p. m. His brother and several other persons were there when he arrived. They engaged in a general conversation as to the manner in which the accident occurred. The decedent was six feet tall, and was smoking a cigar. He, together with several others, went to the east edge of the road, which brought them in close proximity to the wires, which were close to the berm of the road, and about five or six feet above it. While so standing, decedent, who was arguing with a Mr. Kuntz as to the purposes of the insulation, was seen to raise his hand to his hat, when, according to several witnesses, “a ball of fire flew,” and he was electrocuted. He, at that time, was not closer to the wires, so several witnesses state, than one foot.

Evidence was introduced tending to prove the distance that electricity would arc under the conditions existing at the time Fittro was electrocuted. Some of the witnesses testified it would arc not more than a half inch, while others said it would arc from five inches to a foot or more.

The Ohio Power Company, during the trial, requested permission of the trial court to conduct certain experiments in the presence of the jury, that is to say, to demonstrate to the jury the distance that 6,600 volts will arc or jump from a wire to a wire, the information so obtained to be considered as evidence by the jury. The trial court refused to permit the experiments to be made.

During the trial, a newspaper of the city of Kenton published an account of an attempted settlement of the case. Several of the jurors read the article, but, upon a motion for new trial, testified that they were not influenced by reason thereof.

Prior to the trial, the Ohio Power Company, by motion, unsuccessfully sought to have the following allegations stricken from the amended petition: “And was without fault or negligence on his part in any way causing or contributing to his injury and death, and that the proximate cause of his death was the carelessness and negligence of each of the defendants as hereinbefore in this amended petition set forth.”

Other facts appear in the record, but they are not controlling, and hence are not mentioned.

Many claims of error are presented. A large number of them, however, relate to the same subject-matter, being merely couched in different language. It therefore seems proper to group them, which we have done, as follows: (1) Refusal of the trial court to order certain allegations stricken from the amended petition; (2) the sustaining of the Suburban Power Company’s motion for a directed verdict; (3) damages excessive, appearing to have been given under the influence of passion and prejudice; (4) misconduct of the jury; (5) rejection of certain demonstrative evidence; (6) verdict and judgment contrary to law; (7) verdict and judgment not sustained by sufficient evidence; (8) the charge.

The first five claims of error, as grouped, are easily disposed of. No prejudicial error appears by reason of either the claimed misconduct of the jury or the refusal of the trial court to strike the said allegations from the amended petition. Hence said claimed errors are of no moment here.

As to the second claimed error: The action sounds in tort. The defendants are jointly sued. A judgment, therefore, may be rendered either against both of them or against one of them. Reugler v. Lilly, 26 Ohio St., 48; Mead v. McGraw, 19 Ohio St., 55. This claimed error is therefore not tenable.

As to the third claimed error: Fred Fittro, the deceased, was forty-two years of age. He was in good health. He was a plumber, with an average annual net earning of at least $1,500. He was the sole support of his wife and children, with whom he lived. The amount of the verdict is' $14,000. With such facts before us, we are of the opinion that the verdict is not excessive. It is claimed, however, that the verdict was given under the influence of passion and prejudice. It is enough to say that the record does not sustain this contention.

As to the fifth claimed error: The utter impossibility of performing the experiment upon facts and under circumstances substantially similar to those in issue clearly made the evidence offered inadmissible. The trial court did right in excluding it. Jones’ Commentaries on Evidence (2d Ed.), volume 2, Section 734, page 1369.

It is urged, however, by counsel for the Ohio Power Company, as their sixth claim of error, that the verdict and judgment are contrary to law, in that no actionable negligence on the part of their client was proven; and, if proven, then plaintiff’s own evidence raised, as a matter of law, such a clear presumption of contributory negligence on the part of the decedent, not counter balanced by any evidence, as to have required the trial court to have sustained their motion at the close of all the evidence for a verdict in favor of their client. With these contentions we are not in accord.

Admittedly, the Ohio Power Company knew of Johnson’s electrocution; the broken pole; the sagging wires; the voltage carried; the public highway $ and the close proximity of said wires to said highway. With such information in its possession, without sending a servant or employee to examine, repair, or guard the line at the point of the accident, it turned on the current. That such conduct under such circumstances and conditions tends to constitute negligence is patent. Was the decedent, however, guilty of negligence as a matter of law? Manifestly, he had a light to be upon the public road at the point of the accident. It was natural for him to go to the place where Johnson was electrocuted. According to defendant’s contention, the place was not apparently dangerous. In fact, it contends, and its evidence tends to prove, that a traveler upon said highway could have safely passed by said wires if he had remained upon the traveled portion of the highway. In such a state of the record, the trial court did right in overruling defendant’s motion for a directed verdict in its favor. Had the trial court done otherwise, it would have clearly invaded the province of the jury.

It is insisted by counsel for the Ohio Power Company, as their seventh claim of error, that the verdict and judgment are not sustained by sufficient evidence. In order to pass upon this assignment, we were required to read the record. To comment at length on the evidentiary facts will serve no useful purpose. Counsel and the parties are thoroughly acquainted with them. Suffice it to say, a sharp conflict exists in the oral testimony upon the issue of contributory negligence. Different minds, in weighing it, might readily come to different conclusions. We, therefore, under the well-recognized rule enounced in Dean v. King, Pennock & King, 22 Ohio St., 118, 134, must not disturb the verdict upon this ground, unless we find it to be manifestly against the weight of the evidence. This we do not find.

The last assignment of error, as grouped by us, relates to the charge. No exceptions were taken at the trial to the charge of the court. One of the grounds of the motion for a new trial, however, was that “the court erred in its charge to the jury.”

In Pittsburgh, C. & St. L. Ry. Co. v. Porter, Admx., 32 Ohio St., 328, our Supreme Court held: “Where no exception is taken at the trial to the charge of the court to the jury, a judgment will not be reversed, on error, upon the mere ground of error in the charge, without reference to the merits of the whole case.

“Where, however, the whole evidence is made part of the record, and it appears that the verdict is contrary to law, the overruling of a motion for a new trial on that ground, may be reviewed, on error, though no exception was taken to the ruling of the court. ’ ’

In Baker v. Pendergast, 32 Ohio St., 494, 30 Am. Rep., 620, the court held:

“Where the overruling of a motion for a new trial is assigned for error, and all the evidence offered on the trial, together with the charge of the court, is properly brought up by bill of exceptions, a reviewing court will, in connection with the evidence, look to the charge of the court, whether excepted to or not; and if there is reason to believe that the verdict was the result of erroneous instructions, will reverse the judgment and award a new trial.”

We have before us a bill of exceptions containing all the evidence offered at the trial, together with the charge of the court. One of the many claimed errors is the overruling of the motion for a new trial. We therefore are squarely confronted with the following inquiries: Is the charge erroneous; and, if so, is the verdict the result of such erroneous charge?

We have carefully examined the charge, giving special attention to those portions of which complaint is made, and are unanimously of the opinion that the charge of the court, when construed as a whole, is free from prejudicial error. Ohio & Indiana Torpedo Co. v. Fishburn, 61 Ohio St., 608, 56 N. E., 457, 76 Am. St. Rep., 437. However, if we are wrong in our conclusion, still it is undoubtedly true that the rule of law enounced in the case of Baker v. Pendergast, supra, and kindred cases, has no application here, as manifestly the verdict is not contrary to law, and is not the result of the instructions complained of.

Upon the whole case, we are unanimously of the opinion that the Ohio Power Company had a fair trial.

Holding these views, it follows that the judgment of the court of common pleas should be affirmed.

Judgment affirmed:

Hughes and Shekick, JJ., the latter of the Fifth Appellate District, concur.  