[224 U.S. 89, 90] Messrs. Hugo Kohlmann, H. P. Leake, H. H. Scoville, and F. Kingsbury Curtis for plaintiff in error.
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 [224 U.S. 89, 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 [224 U.S. 89, 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 inspec- [224 U.S. 89, 97] tion 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:
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 in- [224 U.S. 89, 98] stance. 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 [224 U.S. 89, 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, 554 , 35 S. L. ed. 270, 271, 11 Sup. Ct. Rep. 653; Zahniser v. Pennsylvania Torpedo Co. 190 Pa. 350, 42 Atl. 707; Alexander v. Nanticoke Light Co. 209 Pa. 571, 67 L.R. A. 475, 58 Atl. 1068; Trenton Passenger R. Co. v. Cooper, 60 N. J. L. 219, 38 L.R.A. 637, 64 Am. St. Rep. 592, 37 Atl. 730; Newark Electric Light & P. Co. v. Ruddy, 62 N. J. L. 505, 57 L.R.A. 624, 41 Atl. 712; 2 Cooley, Torts, 3d ed. 1424; 4 Wigmore, Ev. 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.