ARK.] SOUTHWESTERN GAS & ELECTRIC CO. V. MAY. 2/9 SOUTHWESTERN GAS & ELECTRIC COMPANY V. MAY. 1-3682 Opinion delivered February 4, 1935: • 1. APPEAL AND ERROR—PRESUMPTION ON APPEAL.—In testing the sufficiency of evidence to sustain a verdict, the Supteme Cburt views it in the light most favorable to the successfUl party, indulging all inferences favorable to the: verdict which may reasonably be drawn. . . . ELECTRICITY—NEGLIGENCE—SUFFICIENCY OF EVIDENCE.—Evidence held insufficient to support a recovery against an electric company for injury to one who fell from a stepladder while attemPting to read his electric meter, where •the cause of his fall was purely a matter of conjecture. . • • 3. ELECTRICITY—EVIDENCE OF NEGLIGENCE.—In an action , by one who fell froth a stepladder while attempting tO read his meter, evidenCe as to the Condition of defendant's wires two . or three months after the accident was inadmissible, in absence of evidence : that the condition was, the same, when the ,accident occurred. • 4., EVIDENCE—WEIGHT AND SUF , FICIENCY.—A verdict .cannot be based on speculation. • Appeal . from-Benton Circuit Court ; J. S. Combs, Judge; reversed. • Jeff Duty, :Jno. R. Ditty • and Claude Duty, for appellant. . : . Earl BlanSett, George Blansett and W. Mauride • But-tram, for appellee. - - BUTLER, J. Tom May; the appellee; was injured by falling from a stepladdei% • He brought suit against the appellant company on the .theory that its . negligence- occasioned the fall, .and• reCovered 'judgment. " This judgment is challenged on a Munber •of grounds, hut chiefly on the ground that the •court • erred in not directing a verdict in favor of appellant as requested by it. According to. Settled -rules, in*testing the sufficiency of the evidence to sustain a verdict we view it' in the light-most favorable to the successful party; giving it its strongest value and indulging in all- inferences 'favorable to, the verdict.which may reasonably be. drawn from the evidence. Wh'en thus viewed, it mAy be stated as follows : • Appellee operated a filling station in which electrical appliances were installed in the operatiOn *of which he
-280 SOOUTHWESTERN GAS & ELECTRIC CO. 'V. MAY. [190 had been experiencing some trouble and which, as he thought, occasioned the use of an unnecessary 'amount of electric energy, and a consequent raising in the charges he had. to . pay to the company for its use. He had endeavored to have his troubles rectified by applying to local agents of the company, but without success. Just before his injury he visited the division manager of the company, who advised him that if he, himself, would read the meter, he could determine whether or not there was anything wrong, and he was instructed by the division manager how to read the same. Appellee returned to his place of business and attempted to read the meter which was located under file roof on the outside of the building, and approximately nine feet above the pavement. In order to reach it, ap-pellee placed a stepladder just below it, ascended the ladder and knelt upon a board which constituted the top Of the stePladder. He had with him a piece . Of paper, and a pencil for the purpose of inscribing the figtires as they appeared . on the meter. As he knelt down with the pencil and paper in his hands preparing to *Write the figures, he fell from the tOp of the ladder to the pavement below. After stating that he had gotten down on his. knees with tbe pencil and . paper in hand preparing to write, in answer to a question as to whether or not he had seen a flash coming out of the meter or whether or not he had taken bold of the same or the wires, he stated that he did not see anything, and did not take hold of either the meter or the. wire. A witness who was holding the ladder at the tinie of the accident, and another • who witnessed the occurrence testified that tbey saw appellee ascend the ladder, kneel- upon its top, did not see appellee place his hands upon the meter or the wires. One said : "My impression is that when be got up on top of the ladder he kind of raised his hands Up. • I don't know just how he tumbled off." The other witness, -appellee's son-in-law, said: "I don't know what caused .him to fall. He was reading the meter. I don't know whether he put his hands on the meter or about the meter. He was knocked off or fell off."
ARR.] SOUTIINNESTERN GAS & ELECTRIC CO. v. MAY. 281 The court permitted a Mr. Cuimingham to testify on behalf of tbe appellee over the objection and exceptions of the appellant, that, as he was passing appellee's place of business after the accident, and on a date which witness did not remember, but which . he aSsumed was probably two or three months after aPpellee's fall, he looked at the wires entering the meter as he was standing on the pavement below that they appeared to have been too hot or overloaded or heated. He explained- that he judged this to be th . e case because of the appearance of the wires which looked as if rain drops had fallen on them ; that this would be caused by-the Wires beeoming overheated because of overloading the capacity of the wires. There,was no evidence to show that the condition of the wires when observed by Cnnningham was the same as when appellee's accident occurred. This- testimony was therefore incompetent. Little Roek & F. S. R. Co. v. Eubanks, 48 Ark. 460, 3 S. W. 808, 13 Am St. Rep. 245; St. L. I. M. & S. R. Co. v. Thurman, 110 Ark. 188, 161 S. W. 1054. The undisputea .evidence is also to the effect that the capacity of the wires was 220 volts . ; that there was a ground wire between the bnilding and the transformer which "stepped down" the current rendering it impossible -for a current in excess of 220 volts to enter the meter. - If we give effect to the incompetent evidence of Cunningham and assume that the wires Were expoSed so as to shock a person coming in contact thereWith, there is no evidence which tends to show that aPpellee's. hands came in contact with them; or that bis fall was occasioned by a shock of electricity-which cansed him to lose his balance. Why he fell froth the stepladder is purely a matter of conjecture. The most probable inference -to be drawn from the evidence is that he lost his balance because he _was attemPting to' write While kneeling upon the narrow platform at the top of the ladder, and in no view of the evidence can it be said that an -inference . arises making it more probable that he fell from some other cause. The verdict of the jury Was Without substantial evidenCe, to support it, and clearly appears to be the result
289. [190 of. speculation. .Verdicts . based on speculation have been banned many times. Among tbe cases so bolding are the 'following : Texas Company v.. Jones, 174 Ark. 905, 298 S. W. 342; St. Louis, etc., 10. .Co. v. Sinith, 179 Ark. 1015, 19 S. W. (2d) 1102 ; St. Louis, S. F. R. Co. v. Bishqp, 182 Ark. 763, 33 S. W. (2d) 383. . The judgment of the trial court is therefore reversed, and the case is dismissed..
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