Appeal from the Circuit Court for Wicomico County; Taylor, J.
Brune, C. J., and Henderson, Hammond, Prescott and Sybert, JJ., and reargued before the full Court. Prescott, J., delivered the opinion of the Court. Sybert, J., dissenting in part, in which Henderson and Horney, JJ., concur.
Suit having been instituted in the Circuit Court for Wicomico County by the plaintiff, Maurice Corbett, to his own use and the use of his employer's compensation carrier, to recover damages for injuries sustained by him as the consequence of an accident in which he was involved, a jury rendered a verdict of $12,500 in his favor; and the defendant, Eastern Shore Public Service Company of Maryland (hereafter referred to as the Company, or appellant), has appealed.
The Company is an electrical utility serving, among other localities, Salisbury and its environs. Patrons desiring electricity for commercial use frequently apply in the form of a letter, and on occasions verbally. As soon as the Company is notified that service is desired, its facilities are made ready to supply the electricity when called for, or likely to be used. Numerous elements enter into the rates to be charged to commercial users, such as whether or not a pole line has to be built to serve the particular customer, the quantity of electricity likely to be required, and the times when it will be so required; hence, we see there are reasons for negotiation before a final order for service to such users.
During 1954, a building, the Medical Center Building, located just south of Salisbury, was under construction by a general contractor, and, in accordance with the usual practice, an application was made for "temporary service" of the type generally used by contractors for electrical appliances while they are in the process of building. The customary procedure was followed by the applicant placing a pole in the ground and attaching the necessary equipment thereto, all properly grounded for electricity. The company then ran wires to the pole, and made available the necessary electricity. In this instance, the temporary service was begun on October 27, 1954, and was used throughout the entire construction
period and until after the date of the accident described herein. Not being a domestic user and realizing that permanent service would be required in the future, a representative of the Medical Center had begun negotiations for commercial type of service sometime prior to October 26, 1954. These negotiations culminated in an agreement between the Company and the Medical Center on June 24, 1955.
After reaching an understanding with the patron, the Company began to prepare plans, obtain materials, and get ready generally for rendering service in accordance with the request. To fulfill the obligation entered into, the Company ran a high tension line from a high tension line then existing and running adjacent to a highway not far distant. There were about four new poles put up with wires, cross-arms, and other equipment. On the last pole, a transformer was placed to reduce the current to lower voltage for use in the building to be serviced. "Service wires" were run from this transformer to a "rack" which was attached to what is known in the trade as a "mast" all of which are described below. Here, the Company's property stopped. The wiring in the building was brought outside thereof to this point by the electrical contractor.
The service wires did not cross the top of the building, but ran to the rack, attached to the mast, which ran along the side of the building and some 5 1/2 feet above the roof. They were four in number and eight inches apart; the top wire was neutral, i.e., it carried no voltage but was a "ground," and the bottom three carried voltage when energized. When energized, the voltage between any two of the bottom three wires was 217 volts; between any one of these wires and the mast, the voltage was 125 volts. The bottom wire was at least ten feet above the ground and twenty-nine inches above the level of the roof. The experts produced by both sides testified that, in order to get a shock, a person would have to touch any two of the bottom wires at the same time, or one of them and the mast, the neutral wire, or any other ground. There was testimony that the roof was a good insulator when dry (as it was at the time of the plaintiff's injuries), and it was unlikely that it would operate as a ground so as to permit the current to pass through a person standing thereon.
All agreed that contact with the mast, alone, would not produce shock.
The "rack" was a metal device with two parallel stationary standards. One standard was curved so that it would fit against a pipe or pole and the other standard was a small metal bar attached at both ends to the other standard, and on this bar were four porcelain spools. The porcelain spools acted as insulators, and were so intended that a wire could be attached to them very easily without coming in contact with metal at any point.
The wires were stripped of their insulation or weather-proofing for some 8 or 10 inches from their ends, and attached to the porcelain spools or insulators by a "bail type dead end," instead of wrapping the wire itself around the spool or porcelain insulator and fastening (and taping) the other end to the wire itself, without removing any of the insulation from the wire (the latter is called the "pigtail" method). The dead end was a metal mechanical device made in a U-shape of a size to fit around the porcelain insulator. The wire was then inserted into, and passed several inches through, a hole in a portion of the dead end which was attached to, and closed, the open end of the U. The dead end itself was energized when the wires were. Electrical energy would not, however, go beyond the "dead ends" because the spools, or insulators, would prevent it from doing so.
The mast was a four inch hollow metal cylinder that extended from the ground along side of the building to the roof and then above the level of the roof a distance of five feet four inches, being capped by a semicircular hood, obviously as a protection from the weather. It was erected by the electrical contractor of the Medical Center; and its purpose was to act as a conduit for the electrical wires, which would conduct electricity into the building through the permanent installation, when completed. Protruding from the top of the mast were four large insulated wires, which were to be connected to the four service wires, but, due to the fact that the electrical work within the building had not been completed, were left "dangling."
After the workmen of the Company had installed the service wires, the dead ends, and the rack, the wires and the dead
ends were energized on the morning of the accident, according to the Company's answer to an interrogatory relative thereto. No request had been made to the Company to energize the wires. The Company did not notify the owner, the general contractor, or anyone else that current had been put into the wires; nor did it enclose the wires or place any signs on, or near, the mast giving notice that the wires were energized.
At this time, the building was, roughly, one-half completed. Although the exterior had been constructed, there was still much to be done. The line crew of the Company not only saw ladders, sandpiles, and other materials and equipment on the premises, which clearly indicated that work was still being performed upon the building, but actually saw painters, carpenters, and other workmen laboring on and about the building.
On August 5, 1955, a very hot, dry day, the plaintiff, who had been painting the building for about two weeks, was working under the direction and supervision of his foreman, Walter McDorman. Together, they were painting the outside trim work, which included the mast mentioned above. When they reached the point where the mast was located, McDorman ordered Corbett to paint it. At this time, neither of them knew that the service wires were energized; but, on the other hand, both knew the building was being temporarily supplied with electricity by an entirely different set of wires and that the electrical work on the inside of the building had not been completed, and both saw that the wires coming from the conduit had not been connected to the service wires, leading them to believe that the installation was incomplete and the wires harmless. In compliance with McDorman's direction to paint the mast, Corbett ascended a ladder to the roof, which was about ten feet eight inches from the ground. McDorman was working from the ladder just below Corbett, and could see him "if he looked up." Corbett testified that he made one stroke on the mast with his brush, when he received a shock and was knocked unconscious. McDorman stated that he heard Corbett "holler," looked up quickly and saw Corbett going one way and the paint bucket the other. Corbett landed on the roof some six to eight feet from the mast. McDorman thought he was dead, but he finally regained consciousness and, after considerable
difficulty, McDorman got him to the hospital. At the hospital, he was treated by Dr. Insley, who testified that Corbett "Had suffered an electric shock," which caused him to be "thrown to the ground," facturing his right scapula and injuring his right shoulder.
Within an hour after the accident, officials of the Company had the service wires de-energized, and they remained in that condition until October 27, 1955.
It has been necessary to set forth the facts at some length due to the nature of the case and the further fact that the appellants have not only raised the usual questions presented in negligence cases, such as the insufficiency of the evidence to establish primary negligence and that the plaintiff was guilty of contributory negligence as a matter of law, but several others, besides.
The appellant argues that the plaintiff failed to prove any primary negligence upon its part. First, it claims the plaintiff's own "uncontradicted, unequivocal" testimony showed that none of its instrumentalities caused the injuries to the plaintiff. This claim is based upon the fact that the plaintiff, on cross-examination, stated that he did not touch the wires of the defendant at any point, nor did he touch the mast head with anything except his paint brush; and the experts had testified appellee could only receive a shock by touching any two of the bottom three wires, or any one of the bottom three wires and a ground.
A few States have held that a party to a suit is bound by a definite statement of fact within his knowledge, objective or subjective, as against not only his own conflicting testimony, but that of his own witnesses, that of the other party's witnesses, and that of the other party, attempting to rationalize this strict rule by relating it to the doctrine of judicial admissions or admissions of counsel. The cases are collected in an annotation in 169 A.L.R., beginning at page 815. But the same annotation, at page 804, states the older practice and the prevailing rule is, that, where the self-injuring testimony of a party falls short of a quasi-judicial admission and is contradicted by other evidence, it is to be treated by the court as merely that of a witness, to be considered as evidence by the
trier of facts in arriving at a conclusion on the whole case. And this is particularly true where the testimony of a party relates, not to a fact peculiarly within his knowledge and as to which he could not be mistaken, but is in the nature of an estimate or opinion as to which he may be honestly mistaken; he does not unequivocally concede that the fact is in accord with the opinion expressed, and there is no injustice in permitting the court to consider the other evidence in the case, and determine from all the evidence what the actual facts are. Ibid, p. 803. Cf. 9 Wigmore, Evidence, § 2594 a (3rd Ed.).
The appellant's argument in this respect loses sight of the fact that the plaintiff had received only a grade-school education, had spent his entire life working as a waterman or a painter, and did not express himself so exactly, precisely, and articulately as a person of higher education or wider business experience. The plaintiff's evidence disclosed that the electrical current in appellant's wires was the only current in the vicinity of where the plaintiff was working. The plaintiff testified flatly and unequivocally that he received an electrical shock. His foreman testified he heard the plaintiff yell and saw him fall away from the mast to the roof. The foreman thought he was dead. Dr. Insley, who saw the plaintiff at the hospital very shortly after he was injured, stated that he had sustained an electrical shock. And the plaintiff summed up his recollection of the accident in this manner: "The only thing I know when I made the first stroke with my brush [when starting to paint the mast] all I remember I was in a flame of fire and knocked unconscious. After that I knew nothing for a short period of time. Whatever caused it, I don't know." A consideration of the above testimony shows, we think, that the ...