The history of the case is set forth in the majority opinion. I shall quote such operative facts as are necessary to a determination of the question involved.
It appears that the illuminating company had let certain work to an independent contractor; that the independent contractor sub-let the work to another contracting firm, Vogt Conant; that Patrick O'Connor was an employee of Vogt Conant.
The premises of the illuminating company where the work was to be performed were at the company's sub-station in Northfield. It was proposed to install there certain transformers to reduce high voltage electricity to a lower voltage. The electricity was conveyed from an illuminating company power plant at Ashtabula over a high tension wire carrying 132,000 volts of electricity. The wire was supported by towers of skeletal steel frame work some sixty feet high. The wires suspended between these towers were approximately fifty-two feet above the ground. In arranging for its transformers, it was proposed to do certain work which necessitated the erection of other skeletal steel frame-work towers upon cement piers, which towers when completely erected would rise to a maximum height of about forty-two feet, which additional towers were to be placed immediately below the high tension wires. The contract for this construction was let by the company to a contractor, and by him in turn sublet to subcontractors, Vogt Conant. A crew of men, employees of Vogt Conant, had proceeded with the work by assembling the steel tower upon the ground some distance from where it was eventually to be erected upon the cement piers. This skeletal tower was then conveyed by the use of a crane which was attached to an automobile truck. The arm or boom of *Page 37 this crane was thirty-six feet long with a sixteen foot extension. The skeletal steel tower was lifted by the boom, and the automobile truck proceeded to convey the tower toward the abutment. Several of the workmen, employees of Vogt Conant, proceeded to walk along with and to guide the tower from unduly swinging upon the cable. Patrick O'Connor was one of these men. While in the course of conveying this tower to the cement pier the tip of the boom came in contact with the high tension wires, causing a violent discharge which caused the injuries to Patrick O'Connor.
It must be conceded that the illuminating company when it let the contract for the construction of this work retained no control over the method of performance, as it left all the details of performance to the subcontractor. The mere statement of the operative facts which led to the accident discloses clearly that the work to be done was of a highly dangerous character. The presence of death-dealing electric current in close proximity to the place where the men were engaged in their work is in itself sufficient to characterize the enterprise as a highly perilous one. It is, therefore, in my opinion, properly claimed by counsel for O'Connor that the work to be performed was inherently dangerous, and that therefore the illuminating company cannot delegate to an independent contractor the duty imposed upon it to exercise care under the circumstances.
The suggestion that the doctrine of inherent danger only applies to those who were strangers to the work, and not to those engaged in it, runs counter to the weight of authority and to a careful consideration of the doctrine itself. The majority opinion seems to concede that the work in which these men were engaged was inherently dangerous, but holds that the doctrine of inherent danger, which would prevent the illuminating company from shifting its duty to the independent *Page 38 contractor, does not apply because O'Connor was one of the crew engaged in the performance of the work. The majority opinion maintains that the application of the doctrine must be limited to strangers to the work, and does not apply to those who are engaged in it. In this view I cannot concur.
Once it is conceded that the work in which O'Connor was engaged is inherently dangerous, the legal consequence follows that the duty resting upon the illuminating company to exercise care under the circumstances continues to devolve upon such company, and that the company cannot shift such duty to an independent contractor who was employed to do the work. It is suggested that O'Connor, as well as the other members of the crew, were actually warned of the dangerous condition surrounding the work, and that the duty of the illuminating company ends when such warning is given. This, in my opinion, is not correct as a matter of law. If there is any duty devolving upon the illuminating company despite the employment of an independent contractor it is a duty to exercise ordinary care under the circumstances, which may reasonably involve the taking of precautions other than the mere warning of the workmen of the danger near them. Once it is conceded that some duty devolves upon the illuminating company toward the workmen engaged by the independent contractor in the doing of the work, ordinary care may require under the circumstances not only constant warning of the danger but also supervision and direction of the work. O'Connor, the injured man, was an employee of the subcontractors, and as such was subject to its peremptory orders. No blame can attach to him for doing what he was ordered to do. If the work was of such character that injury was likely to result despite the precautions taken, then there was a clear duty upon the illuminating company to shut off the current while *Page 39 the work was going on in order to prevent injury and death to the workmen engaged in it.
The illuminating company apparently realized and appreciated the dangerous character of the work, because it appears from the record that on some occasions it had a safety man present when the towers were being lifted, who not only warned, but also supervised the work, so that the boom of the crane should not come in contact with the high tension wires.
It is claimed by counsel for the illuminating company that the presence of a safety man on occasions was a mere voluntary act on its part, and that it was under no legal duty to furnish such a safety man. While it may be true that the measure of the duty of the illuminating company cannot be determined by its voluntary acts, yet it bears upon the proposition that the company appreciated the dangerous character of the work. The authorities are seemingly agreed that while the measure of care required of electric companies is ordinary and reasonable care, yet, because of the character of electricity, ordinary and reasonable care with reference to it is tantamount to a high degree of diligence and foresight. 20 Corpus Juris, 341, Section 36.
In Bowling Green Gas Light Co. v. Dean's Exrx., 142 Ky. 678,683, 134 S.W. 1115, the court said:
"Nor is this degree of care an unreasonable requirement. When a company is using in the conduct of its business an agency so subtle and deadly, as electricity, in places where persons have the right to go and be, the highest degree of skill and care attainable should be exercised to protect them from danger."
Fairbairn v. American River Electric Co., 170 Cal. 115, 118,148 P. 788.
"Where death may be caused by an agency lawfully in use,ordinary care requires that every means known, *Page 40 or that with reasonable inquiry would be known, must be used toprevent it." (Italics ours.)
In Galveston-Houston Electric Ry. Co. v. Reinle, 113 Tex. 456,258 S.W. 803, an electric railway company employed an independent contractor to construct a causeway, which work necessitated the use of a derrick with a boom near the uninsulated high voltage wires of the railway company; it was held that it was the duty of the railway company to exercise ordinary care to give employees of the contractor notice or warning of the danger of the derrick boom coming in contact with or near the uninsulated wires, even though the contractor knew of the danger, and that for a breach of that duty, resulting in the death of the employees, the railway was liable.
In the last-named case the man who was electrocuted was assisting in the use of the derrick, and was signaling to the engineer on the derrick when and where to swing the boom. At the moment he had his hand on the lifting device attached to the cable, the cable was swung against the uninsulated wires of the railway company and he was electrocuted. I can see no differentiation between Galveston-Houston Electric Ry. Co. v.Reinle, supra, and the case at bar.
In setting forth the duty of electric companies there are illuminating suggestions in Curtis on the Law of Electricity, 889, Section 581, as follows:
"The [electrical] company is required, as to persons with whom it has no contractual relations, to exercise due care to prevent injury to persons who may be reasonably expected to come in contact with its appliances for business or pleasure. Thus, when an electric company enters into a contract with a person for the performance of certain work, on or near its electric system, though the latter has such control over the doing of the work as to be an independent contractor, the company is, nevertheless, required by *Page 41 law to anticipate that such contractor and his workmen may come into proximity to its appliances, and the duty, therefore, is imposed on the company of exercising due care to the end that such contractor and workmen do not receive injuries from defects in the appliances."
In 2 L.R.A. (N.S.), 777, the following case note appears:
"The duty charged on one who is engaged in the generation of electricity, to keep the wires within and about his building safe for the servants of another, who has contracted to perform certain work in or about the former's building, is imposed by the well-established and familiar doctrine that every man who, expressly or by implication, invites others to come upon his premises, assumes, to all who accept the invitation, the duty to protect them from any danger incurred by coming, which he knows of or ought to know of, and of which they are not aware."
See, also, Stevens v. United Gas Elec. Co., 73 N.H. 159,60 A. 848, 70 L.R.A., 119, in which it was held that an electric company was liable to the workman of a subcontractor, engaged in building a power house on premises of the electric company, who, while working on a staging erected by the contractor, came in contact with charged wires of the electric company. Having invited the workman on the premises, the company owed the duty to protect him while he was working on the premises.
There was clearly a duty upon the illuminating company to exercise care not only to strangers, but to the workmen engaged in the performance of work recognized by the company to be dangerous, and which by mere statement of the facts appears to be dangerous.
This duty it cannot shift by the employment of a subcontractor. Once the existence of a duty on the part of the illuminating company is determined, the *Page 42 precautions to be taken by it to prevent injury and death to the workmen engaged in the highly perilous work must be determined by the particular circumstances of the case. A mere warning to the workmen may not be sufficient, and the presence of a safety man to direct and supervise the work of lifting the towers may or may not be sufficient under the circumstances. If the circumstances disclose a situation where the taking of precautions will not in all probability prevent injury to employees who are engaged in the work, then it becomes the duty of the illuminating company, if necessary, to shut off the current so that the work can be done safely.
The illuminating company in the conduct of its business maintained a subtle and deadly agency in a place where persons were invited to be and work, and ordinary care, therefore, required that every means known, or which with reasonable inquiry would be known, must be used by it to prevent injury.
These are questions of fact which may properly be submitted to the jury for its determination. I am of the opinion that the facts presented on the part of O'Connor not only justify but compel the submission of the issues to the jury, and that the finding of the jury cannot be disturbed merely because the reviewing court may not agree with the conclusions of fact reached by the jury.
Therefore, in my opinion, the judgment should be affirmed. *Page 43