
    CHARLESTON
    Walters v. Appalachian Power Co.
    Submitted February 4, 1915.
    Decided February 23, 1915.
    1. Presentation of Evidence — Indemnity Against Loss.
    
    In an action against an electric company for personal injury, caused by its alleged negligence in the maintenance and operation of one of its wires, it is prejudicial error to admit evidence, over defendant’s objection, to prove that it carried insurance indemnifying it against loss by accident, for the purpose of establishing negligence. (p.678).
    2. Negligence — Evidence—Indemnity—Cause of Injury■ — Ownership of Agency.
    
    Nor is such evidence admissible to prove ownership and control of the particular agency that caused the injury, unless it appears that the contract of indemnity embraces accidents caused by such particular agency. (p.678).
    3. Appeal and Error — -Presentation for Beview — Admission of Evidence — Exception.
    An exception to the admission of improper evidence, appearing in a general bill of exceptions embodying the evidence and specially pointed out in brief, is sufficient to entitle plaintiff in error to consideration thereof by this court, if it appears that such error was called to the attention of the lower court, by stating it as a ground of a motion for a new trial. An exception thus saved, and pointed out, need not be embodied in a special bill of exceptions, (p. 683).
    
      4. Evidence — Materiality to Issues — Exclusion.
    It is proper to reject evidence having no probative value in the' determination of any of the material issues, (p. 683).
    5. Negligence — Contributory Negligence- — Conflicting Evidence — Questions for Jury.
    
    Where the testimony respecting defendant’s alleged negligence is conflicting, and the faets and circumstances relied on to establish plaintiff’s contributory negligence are such that the minds of reasonable men would not agree thereon, the negligence of both are mixed questions of law and fact for jury determination, and it must determine which is the proximate cause, (p. 683).
    6. Damages — Variance—Pleading and Proof.
    
    Proof that defendant was injured by some other part of his body coming in contact with a charged eleetrie wire, when he had averred ^ that he was injured by its striking his foot, is an immaterial variation. (p.684).
    7. Electricity — Negligence—Charged) Telephone Wires — Eiglvways.
    It is negligence for an electric company owning and operating a highly charged electric wire, to suffer a broken telephone wire, even though not owned by it, to fall across its electric wire upon the highway, and remain there as a menace to the public for an unreasonable time. (p. 685).
    Error to Circuit Court, Mercer County.
    Action by W. H. Walters against the Appalachian Power Company. Judgment for plaintiff, and defendant brings error.
    
      'Reversed, and new trial awarded.
    
    
      Bernard McGlaugherty and French <$s Fasley, for plaintiff in error.
    
      Greever & Gillespie and Sanders & Crockett, for defendant in error.
   Williams, Judge:

This action grows out of the same act of alleged negligence by which William Morrison received a personal injury and, on account of which, he sued and recovered a judgment against this defendant] which was recently affirmed by us on writ of error granted to defendant. Morrison was driving a team along a narrow' public road, walking beside his horses. As he was going up a hill he stopped to rest his team, and, seeing the end of a broken telephone wire lying across the ditch and extending into the roadway, and thinking it might become entangled in the wheels of his wagon, and supposing it to be otherwise harmless, he stooped and took hold of it to toss it out. of the road.- It proved to be highly charged with electricity and so overcame him that he was unable to release himself from it. Plaintiff, who was near by, seeing his perilous situation, ran to his assistance, and, in his efforts to get the wire out of Morrison’s hand, came in contact with it himself, and received the alleged injury for which he brought this action and recovered a judgment, to which defendant was awarded this writ of error.

The first error assigned is, that the court permitted improper testimony to go to the jury over defendant’s objection. The testimony of witness D. B. French is specially referred to in brief as improper. Mr. French was counsel for defendant, and was examined as a witness on behalf of plaintiff. He was required to state, over objection, by whom he was employed to defend the case, and replied that he was employed by The Fidelity and Casualty Company of New York City. He was then asked what interest that company had in the suit, and, after - his objection to the question was overruled, replied that he had no direct information, and o' lv knew from hearsay; and on being further asked the following question: “Your information is, or your under-' standing is, rather, that the Appalachian Power Company c;> Nos an insurance policy with that Fidelity and Guaranty company insuring it against loss by accident. Is that true?”, replied as follows: “That is my 'information — yes sir.” Many similar, questions were asked of him, which he was required to answer over defendant’s objections. ■ The ruling of the court, in each instance, was excepted to, and the exceptions are noted in the bill of exceptions embodying the evidence. The testimony was irrelevant and immaterial, and, as we are unable to see clearly that the jury were not prejudiced by it, it is cause for reversal. The fact that defendant carried accident insurance for its protection, could shed no light on the issue of negligence. It might tend to show that it had less incentive to be careful than it otherwise would have had. But the question of motive, in a negligence case, is not material; the conrt and jury are concerned only with the question of fact, whether defendant was negligent, and not with any motive it majr have had for not being sufficiently careful. Such evidence has frequently been held by the courts of this country to be improper and to constitute prejudicial error. Virginia-Carolina Chemical Co. v. Knight, 106 Va. 674, 56 S. E. 725; Sawyer v. Shoe Co., 90 Me. 368; Trembloy v. Hernden, 162 Mass. 383; and Cosselmon v. Bunfee, 172 N. Y. 507. Counsel for plaintiff practically concede, in their brief, that the evidence is not material on the main issue of negligence, but they insist that it is proper evidence tending to prove the 'material fact respecting the ownership and control of the elecrtic wire that caused the injury, and, being proper for that purpose, the court did not err in admitting 'it generally, no request having been made to limit its application to any particular purpose, that it was: properly admitted if allowable for any purpose. Defendant, denied that it owned or controlled the electric wire at’the time and place of injury. This is one of the contested facts: in the case, and it is conceded that if it did not own and control the wire, it is not liable. Hence," counsel-for plaintiff insist that it was proper to show that the action against defendant is being defended by its insurer, as tending to prove its ownership and control of the wire, that if it did not own the wire it would not have called upon its insurer to defend the case. This, we think, is a non seguitur. If the evidence had shown that the policy covered accidents growing out of the negligent use of the particular wire in question, then the evidence might have been admissible as tending to prove that defendant owned, operated and controlled it. But the evidence is, that about a year before the accident, defendant purchased from the Pocahontas Light & Water Company an electric light and power plant in the town of Pocahontas and the system of wires used in connection therewith for carrying current to its customers for lighting purposes; that the wires causing the injury extended from the power plant to the pumping station, a mile and a half out of the town; that this; wire is not especially mentioned in the contract as being either included in, or excluded from, the sale, but that the general terms of the contract are sufficiently comprehensive to include it. The accident policy was not produced, and it does not •■appear from the testimony of Mr. French whether its terms included accidents growing out of the use of the wire in •question. It does not appear what property it included. Clearly, therefore, his testimony was not evidence tending to prove ownership. Granting that, in negligence cases, the fact 'that defendant carried accident insurance may, under certain circumstances, be shown, as tending to prove the responsibility of the insured for the proper care and safe management of the agency causing the injury, still one of the essential prerequisites to its admission for that purpose, is that the policy be proven to apply to the particular agency, the control or -ownership of which the insured denies. This is the distinguishing feature of the cases, relied on by counsel for plaintiff as authority for the admissibility of such evidence 'to prove ownership and control by the insured. The evidence in the case at bar does not measure up to the requirement. •Counsel cite the'following cases, viz.: Shoemaker v. Bryant Lumber & Shingle Mill Co., 27 Wash. 637, 68 Pac. 380; Barg v. Bousfield, 65 Minn. 355, 68 N. W. 45; Perkins v. Rice, 187 Mass. 28, 72 N. E. 323; and Akin v. Lee, 206 N. Y. 20, 99 N. E. 85.

The Shoemaker' case was a suit by the servant for injury •caused by the alleged negligence of the master. An officer •and'1 stockholder in the defendant company testified on its behalf, and, for the purpose of showing his interest in the •suit, was asked on cross-examination if he would not have to pay his proportion of the judgment if one should be recovered against the company, and, having answered in the affirmative, he was then asked: “Would your company have to pay it?”, •and answered, “Yes, sir.” For the purpose of contradicting him, he was asked this further question: “Is it not a fact that, if judgment is recovered against this company, some other company will have to pay this judgment?” That was legitimate cross-examination only for the purpose of testing his credibility, and it is expressly said in the opinion, that the evidence was not material on the main issue. Says the court: “If he should answer the question in the negative, the evidence of interest, as affecting credibility, would be' for the jury to consider. ■ If he should answer in the affirmative, as he did in this instance, the inconsistent statements of the witness were proper to go to the jury, as affecting his credibility and the accuracy of his testimony generally. ’ ’ '

In the Barg case, defendants were manufacturers of woodenware and plaintiff, an infant, was employed to work in the establishment by one Scott, who had charge of a certain department of the business, and was told by him to take, from beneath one of the saws, a tub used to catch the scraps and sawdust falling from it, and in attempting to do as he was commanded plaintiff’s hand came in contact with the underside of the rapidly revolving saw, and some of his fingers were cut off, and he sued defendants for the injury. One of the questions in the case was, whether Scott, who employed plaintiff and put him to work in a place of danger, without properly instructing him, was an agent of defendants, so as to make them liable for his negligence, or whether he took the work, by the piece, in the department of which he had charge, in which event he would not be the- agent of defendants, but would be himself liable. Defendants claimed that Scott was an independent contractor and not their agent. The trial court received evidence showing that defendants held an accident policy indemnifying them from liability “by reason of injury to any employee, including this plaintiff or anybody else that might be in any part of the mill working in the factory,” and showing that the insurance company was defending the action. The supreme court of Minnesota held the evidence to be admissible, as tending to prove that defendants did not regard Scott as an independent contractor. The relevancy of the evidence in that case is apparent, for it appeared that the accident policy embraced injuries received by any person working in any part of the factory, and necessarily included the plaintiff in that suit, and the jury •could very properly infer that the defendants would not have paid for indemnity against damages for which they were not liable. But it does not appear in the case under review that the accident insurance indemnified defendant against damages on account of- injury to the plaintiff, or to any other person, occasioned by the particular wire, title to which is in question.-

In-the PerMns v. Bice case, plaintiff sued on account of an injury received while endeavoring to use an elevator maintained in an apartment building occupied by various tenants. Defendants admitted ownership of the building, but denied that they were in control of the elevator at the time of the accident. It became essential for plaintiff to prove that, not- . withstanding defendants had leased the apartments, they still retained control Of the elevator. On cross-examination of one of the defendants, counsel for plaintiff, for the purpose of’ proving control of the elevator, offered to show that, shortly before the accident, defendants had procured a policy of indemnity insurance against loss or damages from accident arising in operating the elevator, and that such policy was in force when plaintiff was injured. On objection being made to the proof thus offered, by counsel for defendants, who stated that they still denied any control of the elevator, the trial court excluded the evidence. The supreme judicial court of Massachusetts held it to be reversible error. The same distinguishing features exist between that case and the case at bar, that we pointed- out as distinguishing the Barg v. Bous-field ease. In both of those cases the evidence was held to be admissible, because it was shown that the insurance contract indemnified the defendants against damages by accident arising out of the use- of the very thing over which defendant denied they had any control. The evidence in the present case falls far short of that. Says the Massachusetts court: “The probative force of this evidence was for the jury, and it could properly be argued that the defendants would not have deemed it prudent to secure indemnity insurance on an elevator not within their control, or for the careless management or defective- condition of which they could not be held responsible. ’ ’

The Akin v. Le& case is hardly authority for the proposition for which counsel contends. That was a case growing out of the alleged negligence of defendant’s chauffeur in operating an automobile, and a judgment for plaintiff, was reversed, because the trial court permitted counsel for plain-tiff, on cross-examination of defendant, to ask him if' he had not told plaintiff that he was insured against such accidents, and required him to answer the question, over objection by his counsel.

But it is insisted that the foregoing assignment is not entitled to consideration, for the reason that it was not embodied in a special bill of exceptions, nor particularly called to the trial court’s attention in the motion to set aside the verdict. We have already said that exceptions were noted at the time, and they appear in the transcript of the evidence which is . made a part of the record by a general bill of exceptions.. The exceptions thus noted are thereby made a part of the record, and our attention is particularly called to them in the brief of counsel for plaintiff in error. The motion for a new trial also states that one of the grounds was the admission of improper evidence, although the objectionable evidence is not therein pointed out; and it is also made one of the assignments in defendant’s petition for writ of error. This, under former ruling, is sufficient. The error being particularly called to our attention in the manner indicated, it was' not necessary that the objectionable testimony should have been embodied in a special bill of exceptions, or that it should have been specially pointed out as a ground of defendant’s motion to set aside the verdict, in order to entitle it to the benefit of the error in this court. Kay v. Glade Greek & Raleigh R. Co., 47 W. Va. 467; Fuller v. Margaret Mining Co., 64 W. Va. 437; and Wright v. Ridgely, 67 W. Va. 319. Mr. French’s testimony was objectionable on the further ground that it was hearsay and not the best evidence.

Complaint is made that the court efroneously excluded the testimony of George S. Hill. His testimony related to negotiations had between plaintiff and himself, as agent for the defendant company, which resulted in the making of a certain oral agreement for a right of way for an electric line, over plaintiff’s land. He said plaintiff afterwards broke the agreement, and in order to avoid the delay incident to condemnation proceedings, knd because of a slight alteration he found it necessary to make in the location of the line, he was cpmpelled to pay plaintiff a very much larger sum of money for the right of way than had previously been agreed on. This testimony did not have the slightest bearing on the issues involved, and was very properly excluded.

It is also assigned as error, that the court improperly overruled defendant’s motion to set aside the verdict, on the ground that it was contrary to the law and the evidence, and is not supported by the evidence. Having reached the conclusion to reverse the judgment and award a new trial for the error pointed out, we will not discuss the evidence, further than to say that we think there is sufficient evidence to support the .finding of the jury, both on the question of defendant’s negligence and the question of its ownership and control of the electric wire causing plaintiff’s injury. Although there is no direct evidence proving defendant’s ownership and control of the wire, the jury could very reasonably infer that it did, from all the evidence bearing on that question. The written contract of its purchase, from the Pocahontas Light & Water Company, of the power and light plant and lighting system, was introduced as evidence. True it does not mention the particular wire. It was a part of the electric lighting system and, not being specially excepted, it may well be inferred that it was intended to be, and was included under the general terms descriptive of the property purchased.

The allegations in the declaration that plaintiff received the electric shock by reason of the charged telephone wire coming in contact with his foot or anide, does not render objectionable the evidence tending to prove that he may have been injured by its contact with some other part of his body. That would not constitute a material variance between the allegation and the proof. Hanley v. W. Va. C. & P. Ry. Co., 59 W. Va. 419. The material questions are: (1) was he injured by means of the wire, (2) was defendant’s negligence the proximate cause thereof, or (3) was. plaintiff himself guilty of contributory negligence. All of these were facts for jury determination. Even though plaintiff knew of the danger, it was for the jury to say whether he was negligent in trying to release Morrison from the wire. If they believed, from the evidence and the circumstances of the case, that he did what an ordinarily prudent man would have done in the premises, then it was their duty to find that he was not guilty of negligence. If he subjected himself knowingly to a grave danger, he did so to save human life. It was a humane and heroic act, and he should not lightly be, held guilty of negligence in performing it.

If the defendant owned and controlled the electric wire, and permitted the broken telephone wire to fall across it and remain in that condition, on the public highway, for an unreasonable length of time, it was guilty of negligence, even though it did not own the telephone wire. Morrison v. Appalachian Power Co., decided at the present term, and cases therein cited.

The giving of plaintiff’s instruction No. 1 is assigned as error. It assumes no fact as true, and, we think, fairly submits to the jury the question of defendant’s negligence, as well as the question of plaintiff’s contributory negligence, both of which, in view of the conflicting evidence were mixed questions of law and fact for their determination.

Another assignment is, that the court improperly refused to give defendant’s instructions Nos. 1 and 7. This assignment is not well taken. No. 1 was a peremptory instruction to find for the defendant, and, of course, was properly refused. No. 7 would have told the jury, that if they believed from the evidence the wire in question was not owned by defendant, but was owned and controlled by the Pocahontas Light & Water Company or the Pocahontas Consolidated Collieries Company, on May 1, 1912, the day of the accident, they should find for the defendant. This instruction was properly refused, because the same point was practically covered by instructions Nos. 3, 6 and 9, given at request of defendant. The law concerning defendant’s theory of the case was fairly and fully presented to the jury by instructions given upon its request, and there appears to be no error in respect to the giving of instructions for plaintiff, or the refusal to give instructions for defendant.

For the error in permitting the testimony of witness French respecting indemnity insurance carried by defendant, to go to the jury, the judgment will have to be reversed and a new trial awarded.

Reversed, and new trial awarded.  