Argument for Plaintiff in Error.

224 U. S.

happened, and the question is raised whether, under the circumstances specified, the conduct of the defendant was negligent. Dentz v. Penn. R. R. Co., 75 N. J. L. 893.

Plaintiff's cause of action being based upon alleged negligence of defendant in respect to the interior wiring of deceased's house, there could be no recovery in this action if such wiring was not under the defendant's control.

If the injury was caused by matters other than the defects in such wires the plaintiff was not entitled to recover, for the reason that the negligence upon which the complaint is based is in reference to such inside wiring, and clearly recovery could not be based upon negligent acts or omissions other than those alleged in the complaint. McGrath v. St. Louis Transit Co., 197 Missouri, 97; Batterson v. Chicago & G. T. Ry., 49 Michigan, 184; T. W. & W. Ry. Co. v. Foss, 88 Illinois, 551; Atlantic Coast Line v. Capple, 110 Virginia, 514; Long v. Doxey, 50 Indiana, 385; Murphy v. North Jersey St. R. Co., 71 N. J. L. 5.

On the other hand, if the defects in the house installation did cause the death of plaintiff's husband, plaintiff is not entitled to recovery unless defendant was shown to control and to be responsible for the condition of such installation. Murphy v. North Jersey St. Ry. Co., 71 N. J. L. 5, 7.

The burden of showing that negligence, or other wrong, was the proximate cause of the injury is upon the plaintiff. The plaintiff must not only prove negligence, but he must also prove that such negligence was the proximate cause of the injury. Kelsey v. Jewett, 28 Hun, 51; Larson v. St. Paul &c. Ry. Co., 43 Minnesota, 488.

Proximate cause was a question for the jury. Milwaukee & St. P. Ry. Co. v. Kellogg, 94 U. S. 469; St. Louis, I. M. & S. Ry. Co. v. Needham, 69 Fed. Rep. 823; 1 Thomp. on Negligence, § 161 and cases; Pittsburg Ry. Co. v. Carlson, 24 Ind. App. 559; Etna Fire Ins. Co. v. Boon, 95

224 U.S.

Counsel for Defendant in Error.

U. S. 130; and see a decision of the Supreme Court of Spain, March 7, 1902, Vol. 93, Jurisprudencia Civil, referred to in Roman v. American Ry. Co., 10 Porto Rico 52. See also Little v. Hackett, 116 U. S. 366, 371.

The court erred in refusing to charge that if the cause of deceased's death was an inevitable accident, plaintiff could not recover herein. Clyde v. Richmond R. Co., 59 Fed. Rep. 394; Hodgson v. Dexter, 12 Fed. Rep. 283; Dryer v. People, 188 Illinois, 40; Dyget v. Bradley (N. Y.), 8 Wend. 469.

The defendant exercised the degree of care in the inspection of its wires which the law requires to be exercised. It could not anticipate the fire in the bakery, nor did it know the plaintiff's installation was defective. Texas Pac. Ry. Co. v. Patton, 61 Fed. Rep. 259; Atlantic Coast Line v. Capple, 110 Virginia, 514.

The court erred in refusing charge that if defendant had made a proper inspection a short time before the accident, and the inspection disclosed no defect, plaintiff could not recover. Smith v. East End Elec. Co., 198 Pa. St. 19; Denver Com. El. Co. v. Simpson, 31 L. R. A. 566; Cosgrove v. Kennebec Light & Heat Company, 98 Maine, 473.

Defendant's motion to strike from the complaint all allegations as to exemplary damages should have been granted. Milwaukee &c. R. Co. v. Arms, 91 U. S. 489; W. U. Tel. Co. v. Eyser, 91 U. S. 495; Re California Nav. & Imp. Co., 110 Fed. Rep. 670; Thomson v. Chicago, M. & S. Paul R. R. Co., 104 Fed. Rep. 845; Bube v. B. R. L. & P. Co., 140 Alabama, 276.

In Porto Rico there is no statute authorizing the recovery either by parent, widow, or any other person, of exemplary damages in a case of negligence.

The court declined to hear further argument. Mr. Willis Sweet and Mr. George H. Lamar submitted a brief for defendant 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 shock. 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

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

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