Under the direction of the court a verdict was returned in favor of the Electric Company, but the liability of Wright, who designated himself as the Company's "trouble shooter," was submitted to the jury, under instructions which were not only not objected to, but are not abstracted in either brief. There is a conclusive presumption, therefore, that the case was submitted to the jury under correct instructions.
The majority do not distinguish between the liability of the trouble shooter, and that of the company, and I shall not do so, as the majority hold that neither is liable.
It confuses the issue in this case to consider whether the company or its employee were insurers, as no such contention was made or submitted to the jury. Divested of all extraneous issues the question for decision is whether the testimony is sufficient to sustain the finding that the fire was occasioned by Wright's negligence, or would have been averted had Wright not been negligent, and this, I think, was a question of fact which should have been, and was, submitted to the jury. *Page 930
In this, as in all other cases, we give the testimony tending to sustain the judgment in favor of appellee its highest probative value in testing its legal sufficiency to sustain the verdict, but here Wright's own testimony, in my opinion, made a case for the jury. It was to the following effect. He is a salaried employee of the Electric Company, and his duties are to maintain and repair the machinery, lines and equipment of the company. Other work done by him is done on his own account, and the company has no interest in it, as the responsibility of the company ceases at the meter. We copy from Wright's testimony the following statement: "I examined the trouble as I saw it. Brown told me about his daughter going up into the attic and hearing noises. By my experience of 15 or 20 years I did not suppose there would be any trouble. After I had examined the light socket and fixed it I told Brown that there was no other danger. I didn't think there was any other danger. He didn't ask me to go in the attic, but asked me what I thought about it. I heard no noises. It would have blown a fuse if there had been a short sufficient to cause trouble, if the fuse were proper size. I made the best inspection under the information that was given me which was possible. I made a reasonable and honest investigation."
But other testimony supports the finding that Wright did not make a reasonable or intelligent investigation, and certainly not a sufficient investigation. Brown was awakened in the middle of the night by flashes of light, from the socket in his bedroom, and by a cracking noise in the attic, and he disconnected the switch which conducted the electric current into his house, and it was not reconnected until after Wright arrived at Brown's home. Wright came to Brown's home in pursuance of his employment, to repair known defects, and was told where they were, one in the light socket, the other in the attic. Wright repaired one defect but made no examination of the other, because in his opinion the trouble which he found in the light socket would account for the trouble in the attic. It is certain, however, that the trouble in the light socket, which was repaired, did *Page 931 not account for the trouble in the attic, where the fire originated. We think this testimony warranted the jury in finding that Wright did not exercise the care which a reasonably prudent man would have exercised and we think the finding was warranted, indeed is inescapable, that the failure to ascertain and remedy the trouble in the attic was the cause of the fire.
The law of the case is stated in 100 of the Chapter on Electricity, 18 Am.Jur. 496, as follows: "The negligence of an employee of an electric company in reporting that a defect which he had been sent to repair had been remedied when in fact it had not been is imputable to the company, rendering it liable for an injury caused by such defect." We do not inquire whether Wright was acting for himself alone, and not for the company, as the majority hold that there is no liability in either case. But it appears to be an elementary statement of the law that Wright is responsible for the consequence of his own negligence, whether that negligence is imputed to the company or not.
Of course, to sustain the verdict in this case the testimony must show not only that Wright was negligent, but also that this negligence was the proximate cause of the injury, and the testimony to support that finding must not be based upon mere speculation or conjecture. Now no one saw the fire start, which burned Brown's house, but if that requirement is to be imposed, electric companies have been granted immunity for all practical purposes from the negligence of their employees.
But is it mere speculation to say that the defect in the attic to which Wright's attention was specifically called caused the fire? We think the jury was warranted in finding that the defect in the attic caused the fire, and that it is not a matter of conjecture and speculation to so find. We have here a cause and an effect, which logically followed. After the socket had been repaired, the switch was restored so that the electric current would enter the house. Brown and his wife went to the home of a neighbor to get some shrubs to plant, and in from 20 to 30 minutes *Page 932 after leaving their house, they discovered it was burning. The fire was in the attic. The defect which Wright did not repair was a known cause and no other cause was shown or suggested, and if there is any speculation about the origin of the fire, the speculation is that it was not caused by the known defect, but might have originated from some other cause of which there was no evidence. The sequence of events refutes the speculative theory that there was any cause other than the defective wiring in the attic, and in my opinion, the case should not be dismissed, and I therefore dissent and am authorized to say that Justices McFADDIN and MILLWEE concur in that view.