
    ELECTRICITY — MAXIMS—NEGLIGENCE.
    [Huron (6th) Circuit Court,
    1905.]
    Haynes, Parker and Winch, JJ.
    (Judge Winch of the eighth circuit, sitting in place of Judge Wildman.)
    Charles E. Marsh et al. v. Lake Shore Elec. Ry. et al.
    1. The Pact op the Escape of Electricity is not Sufficient to Charge Electric Companies fob Damages Caused thereby, in the Absence of Negligence.
    The mere fact that electricity, generated hy an electric railroad company, escaped from its trolly wire to one of its span wires; thence to a telephone cable of a telephone company; thence to the telephone cable of another telephone company; thence to a gas pipe in a store building; thence to the lead connection with a gas meter in the basement, which it melted off, igniting the gas, setting fire to the floor above and damaging a stock of goods,' does not render all or any of said companies liable in damages to the owner of the goods, in the absence of proof of negligence on the part of one or more of said companies.
    
      2. Keeper -or .User .is not. Liable eor. Injuries Caused by Electricity unless-Negligent. . , .
    Electricity is of a highly dangerous character, but of such common and ■ recognized use in modera civilization that its"use and keeping are- sane-' tioned by law, and if injurious consequences flow from its use or, keeping, negligence of the user or keeper must be ‘shown to render him: liable to - ■ ' one injured by -the electric current.. ■. ; ■ ■
    3. “Res- I-psa Loquitur”.does Not-Apply, to Electric Currents.■ ■
    . .In the absence of a contractual relation- between the parties pr oí a statute-regulating the matter, the doctrine of res ipsa loquitur applies only to ‘ "the case of such highly dangerous things'or agencies as are kept or-hsed solely -bec.ause of. their highly .dangerous character, and not to electricity, which is classed with steam, rather than dynamite.
    [Syllabus by thé court.]"
    .ERROR, to Huron common pleas court.
    McKnight'& Thomas, for plaintiffs.'
    S. ÍVÍ: Young and A. Y. Andrews;‘for "Albion E; Lang; receiver of Lake‘Shore Electric'Ey." ' '' ' • ' '' ■
    C. P. & L. W. Wickham, for Central Únion'Telephone Co. '''
    A. ,M. Beattie and Jesse Vickery, for Local Telephone Co.
   WINCH, J,

’ This was- anl actioh for damages1-brought by. plaintiffs -to recover for loss to' a stock of goods in a store building in Norwalk by reason- -of fire alleged’to'have- been caused by the negligence ■ of the defendants.' Some of the defendants were dismissed from--the case.by the trial.judge and as to this, we understand there is no complaint.

The ease was submitted to the jury as to the negligence of the defendants, Albert E. Lang, receiver, operating the Lake Shore Electric Railway, the - Central' -Union Telephone "'Comp'any- áfid the‘Local Telephone Company. - .,. ..

Plaintiffs claim that the fire originated by reason of the following sequence of events:

On August 2, 1902, the Central Unión Telephone Company was stringing a-messenger, wire on the south side, of East Main-street, east of where.the fire occurred, using a tackle and horse to stretch the wire. A rope in the tackle attached to ■ the - messenger wire broke and permitted the ¡laid wire to'sag dbwn onto a span wire- of the Lake Shore Electric Company which was, heavily, charged’ with, electricity from its trolley -wire.' ■ The electric current-passed easterly on this- messenger wire,until it came to a.,guy wire.crossing thdstreét'to the‘.north; which it'followed1 to-the north side of the’Street-where it met- certain lead hangers supporting the cable covered" wíth 'á. leá.cl' sheáth/belonging to "the. Local Telephone-.. Company;. it ¡traveled-on=.this lead, sheath to the wpst. an,d,.-followed it southerly, back-across the street and into the ex-' -change of thp, Lo.ceiI- Company on the top-floor -of- the--building,-.'the ground ñqor,.and basement .of■ which .-¡was■-occupied^by-■ the' plaintiffs. This, cable on the. top- floor ,o£ the hqilding -crossed- a, gasapipe with- which it was. ip-.contact,..or.so near that the electric-current-passed.by-arcing, or otherwise into the gas pipe and down it to the basement where-it came to the.lead pipe connecting .the.-gas pipe do -the; gas meter, .which lead conneetion.it melted, off, allowing -the- gas to- escape and ignitihg it.' ■ The ignited gas-set fire do the-floor above -it and .from this -fire- thé damage arose, .as it is. claimed; -. • . 1 . •• '•

The plaintiffs-alleged’that'the Lake Shore 'Electric’ Company, which-name may--be used- as ’meaning1 its- 'receiver, Was" negligent and tailed to use ordinary c'are in' not placing and maintaining' an 'insulating device in the span' wire-'between its trolley wire-'ahd the pole' to‘which said span-wire was- attached,--'and iff hot placing'a1 guard wire’'over-said span wire. •• • •

'■-'They alleged t¿at'"the'Central Union ’ Company w'ás" negligent in allowing its messenger''wire"to come'in. contract with k'áid span wire ánd -at the same-time’with the-guy wire crossing thé street.'

They alleged -that the Local'Company was negligeht in'placing its lead-sheathed cable so-near to the-iron-gas ■ pipe'connected with the meter-in-plaintiff’s 'basement that1 any-heavy current of electricity would arc from1 said cable- to -said gas-pipe; without providing some'adequate insulating deviee'tO'prevent such arcing;- ■' ' ..’

-.The answers of ■ the defendants- •severally deny negligence'on the part of- the. defendants and-that the fire'occurred in1 the’'manner-claimed by plaintiffs. .-One or-more -of-the- defendants 'deny that-the fire'occurred at all, and'allé'ge-that-if 'it' did,-it was'by-reason'of the-plaintiffs’, own negligence; " !- > - ■ - - ■

Plaintiffs’ reply denies contributory negligence.

The'-issues- of fact thus-raised'-were submitted tu'the' jury which found for the defendants, and judgment was 'éntéred'-aeeord'ingly-. ■ •

As to the many exceptions to rulings on evidence, which have been called t-o-our attention,'all-'we" caff say-is; that' we have examined and considered -them, -but-find nO error prejudicial to' plaintiffs which' would' require'a reversal of this-case-. The bill of éxééption's is so' Tong; ■ the rulings .eomqiai,n'ed"of-Bo-mimerbus-and'the'charafeter-of the 'évMetíec, much of it expert testimony as to the nature and characteristics of electricity, -so technical and abstruse, that no good 'purpose would be-subserved by reviewing in detail the rulings complained of.

As to the charge, exceptions were taken by the plaintiffs to the-charge as given by the court, to the giving of certain requests to charge of defendants and the refusal to give certain requests to charge of plaintiffs.

The sum and substance of the objections to the charge is, that it held the plaintiffs to the burden of proving the negligence of one or more of the defendants as charged in the petition, while plaintiffs now claim that the doctrine of res ipsa loquitur should have been charged;; in other words, that, having proved the fact of the injury and the defendants’ connection with it, as claimed, it was for the defendants to prove, if they could, that they were without fault. . ¡

The charge as given, is published in Marsh v. Railway, 50 Bull. 189, 192, and for that reason it is not now necessary to restate its-propositions.

What counsel for plaintiffs in error claim as the correct rule for the case, is best,stated in their own words, as follows:

“When we began this action we believed that the doctrine laid down by Judge Blackburn in the ease of Fletcher v. Rylands, 5 H. L. Rep. 330, was the correct rule of damages in this ease at bar, but did not feel so sure as we do now, and plead negligence, and upon a hearing upon motions and demurrers, we took leave to amend and again plead negligence. We are now firmly of the opinion that a statement of the facts, showing that an electrical force was created or gathered, and conducted upon our premises, setting fire to them and causing damages by smoke, .states a good cause of action without pleading negligence. The language used by Judge Blackburn exactly fits this ease, in that we were in and upon our own premises, and the three defendant corporations, in the prosecution of their several businesses for profit, created or gathered together a dangerous and destructive force, from which, if it escaped, injury was liable to follow, and well knowing this, not only permitted it to escape, but constructed a path or channel that was bound, under the laws of nature, to bring it in and upon our premises, by reason of which our goods were smoked and damaged, without any fault of ours.”

There occur to us at least three reasons why the rule contended fon should not have been applied in this case: First, because it is not certain from the evidence that the fire was started in the manner claimed by defendants; second, at least one of the defendants, the Local Com•pany, was not active in the transaction at all; third, the “celebrated and much criticised case of Fletcher v. Rylands,” has never been adopted in its entirety, as the law of this state.

On page 146 of the opinion in the. ease of Langabaugh v. Anderson, 68 Ohio St. 131 [67 N. E. Rep. 286], Judge Price says:

“As yet no decision of this court has adopted the entire scope of Fletcher v. Rylands, and while it holds in general, a good and wholesome doctrine, resting on good morals and sound reason, its application should be made with suitable and necessary limitations.”

But let us taire up plaintiffs’ claim wtih regard to the Lake Shore Company, alone, as that company appears to come more nearly within the scope of plaintiff’s contention. Here was a company handling and using for its own purposes a subtle and highly dangerous energy, harmless, if properly handled, but of such tension and so dangerous if allowed to escape, that injury was sure to happen to persons or property coming in contact with it. The great danger to be apprehended from electricity of high voltage or tension is known to us all, for is it not selected by the state as the instrument for the speedy execution of those condemned to death?

With regard to the rule that the “occurrence speaks for itself,” many cases have been cited to us. Most of the cases are gathered together and analyzed by Judge Price in the case of Langabaugh v. Anderson, supra, and from his analysis, we gather that there are three classes of cases in which the rule is applied:

First, those eases in which a duty is imposed upon the defendant by reason of a contractual relation between the parties.

To this class belongs the sleeping car case, where the' upper berth fell upon the passenger in the car; Railway v. Walrath, 38 Ohio St. 461 [43 Am. Rep. 433]. The railroad company, in effect, was held to be the insurer of the safety of the passenger.

The same rule was applied by the Summit county circuit court in the ease of Wheeler v. Traction Co. 27 O. C. C. 517. Wheeler had contracted with the defendant company to supply him with a current of 104 volts of electricity for incandescent lights. Such current is harmless. The company permitted 1040 volts to pass in over its wire. Wheeler was killed. The company was held to an explanation of the injury and liable, unless it showed that some one else sent in the deadly current.

The case here does not come in this class, for no contractual relation existed between the parties. \

The second class of eases includes those where a statutory duty has been violated, siich-'ás the case of Gas Fuel Co. v. Andrews, 50 Ohio St. 695 [35 N. E. Rep. 1059; 29 L. R. A. 337], where it was held:

“The provisions of Revi ■ Stat. ‘3561a " (Lan:" 5704) impose 'on plaintiff in error the duty of keeping under' its-control natural gas while it is transporting the skme,-and’if''dámage'shoúld result to'oth'ers. without their fault; by''its'explosion vihilé being''thus tránSportéd, the pláintiff'in error would be-held'liable therefor; although not'negligent •in regald thereto:

It is not pleaded in this case that any'duty'is imposed ujióñ :de~ fendahts by statute; which they1'violated. "

A''third class of cases is that where the' defendant is-keeping or using a highly dangerous thing or agency which'is'liable to'do lia-m to Others if it escapes; or is negligently 'used Or handled. ' To this'class belongk the case 'at bar, 'but we find here a distinction pointed out which requires a further ’classification or subdivision into' those which are at all times, in all places and under all circumstances dangerous:'such as are -made, bought, sold and used béeause 'of their highly dangerous character, as to which the Owner assumes" the liability of their accomplishing natural and probable results; and the' other subdivision, those things'of a highly dangerous eharaéter, but yet of such Common, and 'recognized use in modern civilization that their úse or keeping is-sanctioned by law and necessary 'in many departments of industry, as to which the courts hold that théir usé ’being lawful, if injurious consequences flow therefrom, negligence' in' their use must be shown, to render the defendant liable. ' ' ’

Now, to which of these classes belongs electricity of tension sufficient to run a trolley car and which'will kill a’man if hot properly handled? '

• In applying the distinction here drawn to the ease at bar, the court confesses its ignorance of natural science. Much help is to be had by reference’ to the decisions of the Supreme Court of this state, but principally by why of illustration. The law is growing from day to day, as industrial science is growing, so that what may now be. considered in the first subdivision of this class, ten years from, now, b> reason of the advance of the arts, may belong, to tlj.e second subdivision

In the first subdivision belong,the gunpow,der .and nitroglycerine cases, such as the case of Bradford Glycerine Co. v. Manufacturing Co. 60 Ohio St. 560. [54 N. E. Rep. 528; 45 L. R. A. 658; 71 Am. St. Rep. 740], where it was held that the owner, of,the .explosive was liable, for damages caused by its explosion, without proving that he was. negligent.

’Of the same character, iS’fh'e vMdu'S-dOg case of Hayes v. Smith, 62 Ohio St. 161 [56’ N; E.'Rep':’ 879-]: '•>•!*• -.i‘> ■

Oh the'other'hand; it; has 'been'held -that'-negligence'-must be proved in the ease of sparks from-a locomotive, Ruffner v. Railway, 34 Ohio St. 96; explosion of á steam boiler, Huff v. Austin, 46 Ohio St. 386 [21 N. E. Rep. 864; 15 Am. St. Rep. 613], and’ storage óf crude’petroleiun in tanks, Langabaugh v. Anderson, 68 Ohio St. 131 [67 N. E. Rep. 286].

■ In the steam boiler case, it was said:

“‘The defendants ’had á right to place th'e steam boiler on- their premises. Used as it was to run the' saWmill; it' was- in’ -no- sehse a nuisance. As an agent in the various departm'éríts of industry; the steaih engine has become á necessity in modern life. But though’-placed on one’s own premises, the ownef of a steam -engine and boiler will be held responsible' for his' negligence, -if hb' so’ operates the • same as to injure'one who conies lawfully upon the premises by invitation'or permission! • Though doing a lawful act upon his’ 'own premises, he will be liable for'injurious consequences that-may result from' it‘to another, if it was so done as to constitute• actionable negligence.-' In such case there is a proper application of the rule that one should -enjoy his own property in such manner as not to injure that of another. ” '

We are aware that in some states electricity has apparently been classed with dynamite rather than with steam. The strongest expressions of opinion on the subject are found in the Louisiana case of Potts v. Railway, 110 La. 1 [34 So. Rep. 103; 98 Am. St. Rep. 452], but they were not necessary to ¡a determination; of. the case,,for the telephone lineman knew that the span wire of the trolley company was charged with electricity, and the only 'issue 'involved was as to the lineman’s contributory negligence.

The modem uses of the subtle and highly dangerous energy, called electricity, in the industrial and commercial world are perhaps more numerous, and at least more common or widespread,- than the uses of' steam. Counsel for plaintiffs suggest that electricity' operates under known rules. It lights our streets and houses; it warms our cars; it runs our motive power, 'or is our'motive power in the operation of manufacturing establishments; it is used .in chemistry, and the arts in manifold' ways, 'sometimes -to reduce the' most' infusible substances by its great heat, coupled with its peculiar energy. It propels oúr cars with the speed of ,a l.oeqmotive and carries a whisper for. a thousand, [miles. Its-energy varies, and is - controlled; from that-which rings your door"bell'to that which executes yóúr criminals!'’ "'

It is harmless, indeed healthful, when but slightly present; it is deadly when of high degree or tension. Varying through all these degrees from harmless to deadly, it encircles the earth upon a mesh of wires and we cannot now get along without it. Hqw many years backward would civilization step, if we abolished electricity from the daily affairs of life. Its ,use is recognized and lawful. Its dangerous qualities are fully known by all, — as fully as, if not better than, the expansive power of steam. Shall those who store it, or use it, be held to be insurers of the safety of all persons who may come in contact with it in person or' property, or shall they be held to care, commensurate with its deadly qualities, as they are in the ease of steam?

For the reasons stated, we are inclined to think the charge in this case was warranted by the case of Langabaugh v. Anderson, supra.

Again, we are not at all sure that the jury was not right in bringing in a verdict for the defendants, because the plaintiffs failed to prove, by a preponderance of the evidence, that the fire originated in the manner claimed by theru. On this point, however, we are doubtful whether we would consider the verdict against the weight of the evidence, had the jury found the other way.

On the whole, we find no error in the record, and the judgment is affirmed.

Haynes and Parker, JJ., concur.  