Summary
holding that "[f]oresight, not retrospect, is the standard of diligence"
Summary of this case from Ross v. St. Elizabeth Health CenterOpinion
No. 29190
Decided April 7, 1943.
Negligence — Substantial evidence or proof of facts supporting inference, required, when — Electric power company to exercise highest degree of care, when — Power company not liable for injury resulting from unusual occurrence, when.
1. To support a judgment in favor of the plaintiff in an action based upon negligence the record must disclose substantial evidence which tends to prove negligence, or facts from which an inference of negligence may reasonably be drawn.
2. A power company erecting and maintaining equipment, including poles and wires, upon or along a public road, for the purpose of transmitting and distributing electrical current, is bound to exercise the highest degree of care consistent with the practical operation of such business in the construction, maintenance and inspection of such equipment and is responsible for any conduct falling short of that standard.
3. Such company is not liable to one injured as the result of some unusual occurrence that cannot fairly be anticipated or foreseen and is not within the range of reasonable probability.
APPEAL from the Court of Appeals of Hardin county.
Annabelle Hetrick, as administratrix of the estate of Richard Hetrick, deceased, on October 10, 1939, filed suit against the defendant for damages in the sum of $50,000 for the alleged wrongful death of decedent. The action was prosecuted for the benefit of herself, as the widow of decedent, and Barbara Jean and Beverly Jane Hetrick, their minor children.
The case was tried upon the third amended petition, the answer thereto and the reply.
The third amended petition alleges that plaintiff 'believed she had been appointed administratrix of the estate of Richard Hetrick, deceased, on or about February 15, 1939; that the papers were mislaid or lost and upon discovering that fact she was duly appointed on January 10, 1941; that Richard Hetrick died on April 25, 1938, leaving surviving him his widow (the plaintiff) and the two aforesaid minor children, all of whom were dependent upon decedent for support; that The Marion-Reserve Power Company is a corporation engaged in electric power distribution and as such is, in that respect, the successor in interest of and to the property and liabilities of the Ohio Electric Power Company, a corporation, which, on and prior to April 25, 1938, was engaged in the transmission and distribution of electrical current in Section 13 Roundhead township, Hardin county, Ohio, by means of poles, wires and sundry equipment, then and there maintained just within the right of way from the west of a township road known as route 12; that the poles were about 20 feet in height and seven and one-half inches in diameter; that each and all of them had embedded in the wood thereof, about six feet above the ground, an emblem, the shape of a bell, with the visible imprint therein of the words "Bell Co." which emblem resembled in every particular the sign used on its poles by the Bell Telephone Company; that on April 25, 1938, plaintiff's decedent, while in the employ of the county commissioners, was operating a caterpillar tractor and road grader attached, being then engaged in grading township road, route 12; that in so doing, due to the location of the poles, it was necessary for plaintiff's decedent to operate the grading equipment in close proximity thereto; that inadvertently and solely because of the pull of the grader thereon the grader came into slight contact with one of such poles which broke, thereby precipitating the charged wires thereto attached onto the grader; that plaintiff's decedent, in attempting to free said lines and pole from the grader, came in contact with the wires and was instantly electrocuted; and that his death resulted solely, directly and proximately from the negligence of the defendant. Four specifications of negligence are set forth. These are the pertinent material allegations of the petition.
The four specifications of negligence later will be particularly noted.
The answer sets forth three defenses. The first defense admits the following facts as alleged:
"1. Richard Hetrick died on April 25, 1938, leaving the plaintiff, his widow and two daughters, Barbara Jean, aged four years, and Beverly Jane, aged two years, surviving him, all of whom were dependent upon him for support;
"2. Plaintiff was appointed administratrix of the estate of Richard Hetrick, deceased, on January 10, 1941, and plaintiff has accepted said appointment and qualified as such administratrix and prosecutes this action for the benefit of the next of kin of said decedent;
"3. It is engaged in the distribution of electric energy for public consumption and as such acquired the assets and liabilities of Ohio Electric Power Company on or about November 1, 1938;
"4. On or about April 25, 1938, and prior thereto, the said Ohio Electric Power Company, defendant's predecessor company, transmitted and distributed electric energy by means of poles, wires and sundry equipment along county road No. 12 in section thirteen (13), Roundhead township, Hardin county, Ohio; further that such equipment is now the property of this defendant;
"5. The poles along said county road No. 12 were about twenty (20) feet in height and seven and one-half (7 1/2) inches in diameter; and the wires attached thereto were uninsulated;
"6. On April 25, 1938 plaintiff's decedent, while employed by the County Commissioners of Hardin county, Ohio, was engaged in grading county road No. 12 and in so doing operated a caterpillar tractor with road grader attached;
"7. Plaintiff's decedent came into contact with a wire on the pole line then operated by said predecessor company and was electrocuted."
Then follows a general denial of each and every allegation not expressly admitted to be true. The second defense claims contributory negligence. The third defense sets forth that the action was not instituted within the time provided by law. Plaintiff's reply in legal effect denies the second and third defenses set forth in the answer. Upon these pleadings and the evidence the cause was submitted to a jury.
There is no substantial dispute in the evidence which discloses the following facts.
Richard Hetrick, a man 24 years of age, was employed part time upon road work by the county commissioners of Hardin county. On April 25, 1938 (the date of his death), he and one Allen Stroble, likewise employed by the county, were grading and scraping a mud road known as route 12 in Hardin county. Allen Stroble was in charge of the operation. The machinery used consisted of a caterpillar tractor and a grader. The caterpillar tractor was attached to and furnished the power for the operation of the grader. The tractor was operated by Hetrick and the grader by Stroble. The defendant company at that time and for several years prior to April 20, 1938, maintained along this road sundry equipment including poles and wires, for the purpose of transmitting and distributing electrical current. The poles at the place of the accident were located in a ditch parallel to the road and five feet or more away from the traveled portion thereof. They were 25 feet in length, 7 1/2 inches in diameter and embedded in the ground five feet. Two strands of uninsulated copper wire conducting the electrical current were attached to the top thereof about 20 feet above the ground by glass insulators. The poles were purchased from the Bell Lumber Company and this company marked all of its poles in question by indenting in the wood the emblem of a bell and inside thereof the words "Bell Lbr. Co. 1927," 1927 being the year that the broken pole was manufactured by the lumber company.
The wire conducting the current is known as No. 6 bare copper wire, in size, about twice as large as ordinary telephone wire and about one-half the size of a lead pencil.
This road was overgrown with weeds and the actual lines of the roadway are undisclosed.
There is a dispute as to whether the pole was upon the public road or upon private property.
As to the occurrences which immediately preceded and led up to the electrocution of plaintiff's decedent, the case stands upon the testimony of Allen Stroble. He testified that it was necessary for them in building a berm at the side of the road to come in close proximity to the poles. They had passed two or three poles which were approximately in the same line but just as they reached the pole in question the grader slipped and the lifting arm of the grader struck the pole which broke off and fell upon the grader. One of the two wires carrying the electric current was broken, the other remained intact. The tractor and grader were stopped almost immediately after the collision. Hetrick got down from the tractor, came back to the point where Stroble was standing upon the grader and saw Stroble take the broken wire and throw it off to the side. The testimony with regard to what happened from then until Hetrick's death we quote from the record:
"Q. What if anything else did you do or say about getting the pole off of the grader? A. We said it was nothing but a telephone pole and we had to get it off, and I said, 'Hand me the pliers and I will cut the wire.'
"Q. What was done? A. He looked for the pliers and couldn't find them and I got down to look for them, and while I was doing that Hetrick found the hammer and said, 'This is a better idea, we will not have to cut the wire, I will cut the glass.' And he climbed up on the grader and I was on the ground, and as he reached for it he must have lost his balance and then — (interrupted)
"Q. What did he do? A. He reached for the wire to hold himself and put his arm like that, and he was standing on the iron beam on the grader, and the fire flew out of his shoes and there was a flash of fire.
"Q. What happened to him? A. I was very scared and the only thing I thought of was to get him off, and I grabbed him between the knees and pulled his feet loose from the grader and his hand broke loose and I laid him back on the ground and he gasped a few times and his limbs all puffed up and he was blue.
"Q. He was dead? A. Yes.
"Q. After you and Hetrick looked at this bell emblem on the pole and after you had had the conversation and after you had told him that it was nothing but a telephone line, was there a place on that pole or anything near where you were working that day, any sign that stated this was an electric line carrying electricity? A. No."
It is disclosed without contradiction that the lines and wires were erected along this road in 1927 in accordance with the National Electrical Safety Code and on the date in question the equipment on route 12 conformed in every respect to that code. The code provision for clearance from the ground in rural electrical construction for wires carrying a voltage of from 750 to 15,000 volts was 18 feet. These wires carried 2,300 volts and were 20 feet above the ground. The line along this road had been inspected within ten days before this occurrence and the poles and other equipment were in good condition at that time. This pole was one of a number that were purchased from the Bell Lumber Company, which company at that time indented in the pole the emblem of a bell and inside of the bell appeared the words "Bell Lbr. Co. 1927." The safety code contains this provision: "Poles shall be set to such a depth and in such a manner and back filling shall be so thoroughly tamped that the applied load will break the pole before the butt is pulled loose from its setting."
This is a sufficient statement of the salient facts to disclose the question presented.
At the conclusion of the plaintiff's evidence defendant's counsel moved for an instructed verdict, which motion he renewed at the conclusion of all the evidence. Both motions were overruled by the court.
The cause was submitted to the jury and a verdict of $9,700 was returned in favor of the plaintiff. In addition thereto the jury answered 14 interrogatories. After verdict defendant moved for judgment for the defendant on the findings of fact returned by the jury and also for a new trial. Both of these motions were overruled and judgment was entered upon the verdict.
An appeal on questions of law was taken to the Court of Appeals, which court reversed the judgment of the Common Pleas Court and entered final judgment in favor of the defendant.
The case is here for final determination upon the allowance by this court of a motion to certify the record.
Mr. Roy Warren Roof, for appellant.
Messrs. Strelitz, Dowler Wiedemann, for appellee.
The single question presented is the correctness of the judgment of the Court of Appeals.
Before directing our attention to that question we shall dispose of certain claims made by the plaintiff. It is vigorously asserted both in the brief and in oral argument that the Court of Appeals injected into the case a new issue not made by the pleadings or presented to the trial court; the claim being that the judgment of the Court of Appeals is based upon the conclusion that plaintiff's decedent was a trespasser, and for that reason could not recover.
It is true that the majority opinion of the Court of Appeals does discuss the question of trespass and concludes that Hetrick, the decedent, was a trespasser and for that reason plaintiff could not recover.
However, Section 2, Article IV of the Constitution of Ohio provides in part:
"In cases of public or great general interest the Supreme Court may, within such limitation of time as may be prescribed by law, direct any Court of Appeals to certify its record to the Supreme Court, and may review, and affirm, modify or reverse the judgment of the Court of Appeals."
This provision grants jurisdiction to this court to review the judgments of the Courts of Appeals, and while serious consideration is given to the opinions of those courts, this court is bound by the judgment, not the opinion.
The judgment entry recites, "Find error in that verdict and judgment are contrary to law. Judgment reversed and final judgment rendered in favor of defendant and against plaintiff at costs of plaintiff."
It is a familiar rule that a reviewing court will not disturb a judgment, if correct, upon the ground that, in the opinion of such reviewing court, incorrect reasons are stated as the basis of such judgment.
Coming now to a consideration of the question whether the record contains evidence of actionable negligence, we are not unmindful of the rule that the plaintiff is entitled to the benefit of the most favorable construction of the evidence of which it is susceptible as well as the benefit of all reasonable inferences to be drawn therefrom. Bauer v. Cleveland By. Co., ante, 197.
It was necessary however that the plaintiff offer some substantial evidence of negligence on the part of the defendant or proof of facts and circumstances from which a reasonable inference of negligence could have been drawn.
Did plaintiff sustain this burden?
It should be observed at the outset that electricity is a dangerous and deadly energy and therefore it is the duty of a company transmitting and distributing electrical current over equipment, including wires attached to poles placed along and upon a public highway, to exercise the highest degree of care consistent with the practical operation of such business in the construction, maintenance and inspection of such equipment. Kentucky Utilities Co. v. Woodrum's Admr., 224 Ky. 33, 5 S.W.2d 283, 57 A. L. R., 1054; Memphis Consolidated Gas Electric Co. v. Letson, 135 F., 969; Denver Consolidated Electric Co. v. Lawrence, 31 Col., 301, 73 P. 39; Knowlton, Admr., v. Des Moines Edison Light Co., 117 Iowa 451, 90 N.W. 818; Haertel v. Penn. Light Power Co., 219 Pa. 640; 9 Ruling Case Law, 1199, 1200.
It is a matter of common knowledge that the use of electrical current has become a household necessity, that the public demands service at reasonable rates and that the company furnishing the service is entitled to a reasonable profit.
In response to that demand the General Assembly has granted permission to telephone and light and power companies to construct lines from point to point along and upon any public road by the erection of the necessary equipment, including posts, piers and abutments, subject only to the restriction that such installation shall not incommode the public in the use of public roads. Sections 9170 and 9192, General Code.
It is equally a matter of common knowledge that upon and along almost all of the many thousands of miles of roads and streets in Ohio are strung wires of telephone or light companies, or both.
This record discloses that both telephone and light wires carry electrical energy; the difference is only in the intensity of the current. We think that the presence of these suspended wires, in and of themselves, is a warning to the adult public of potential danger.
With these considerations in mind we come now to consider the specifications of negligence and the evidence offered in support thereof.
Specification No. 1. "In transporting and distributing electric current along and just within the right of way of a traveled public road over and through wires attached to small, short and rotten poles."
Five of the interrogatories as submitted to and answered by the jury are as follows:
Interrogatory No. 4. "Did the road grader or the caterpillar tractor strike a pole of the defendant on county road No. 12, Hardin county, Ohio, on April 25, 1938?" Answer. "Yes."
Interrogatory No. 10. "If your answer to question No. 4 is 'Yes' where was the pole located, in the ditch along the road, or in the field?" Answer. "In the ditch along the road."
Interrogatory No. 12. "If your answer to question No. 4 is 'Yes' how far was the pole from the traveled portion of the road?" Answer. "From about five to five and one-half feet."
Interrogatory No. 13. "If your answer to question No. 4 is 'Yes' was that pole tested by employees of the defendant in the early part of April, 1938?" Answer. "Yes."
Interrogatory No. 14. "If your answer to question No. 13 is 'Yes' what were the results of the tests made by the employees of the defendant at that time? Answer. "Sound."
These answers established as facts that the pole was located in a ditch a distance of five to five and one-half feet from the traveled portion of the road and that the pole had been tested in the early part of April 1938, and was sound.
It must be borne in mind that this was a seldom used mud road in the country and the answers to the five interrogatories dispose of any claim that the location of this pole could or did in any way incommode the public in the use of the road.
Specification No. 2. "In transporting and distributing electric current along and just within the right of way of a traveled public road, over and through wires attached to short, small and rotten poles, without having said wires insulated in view of and considering the said complained of condition of said poles."
The gist of this specification is that the wires were not insulated.
In 1929, the General Assembly repealed the statutory requirement that all wires conducting electrical current must be insulated. In view of that fact, together with the fact that the undisputed evidence discloses that these wires were in the open country, not in close proximity to trees or buildings, 20 feet above the ground, we hold that the company cannot be held negligent merely because the wires were uninsulated.
Specification No. 3. "In transporting and distributing electric current along and just within the right of way of a traveled public road, over and through uninsulated wires, attached to short and slender poles with a visible Bell Co. emblem imprinted therein, without in some manner warning the public and decedent that said line was an electric instead of a telephone line as it in truth and fact appeared to be."
The record discloses that the pole was purchased in 1927 from the Bell Lumber Company, and that the trade mark used by the lumber company at that time consisted of the emblem of a bell in which was inserted the words, "Bell Lbr. Co. 1927."
In exercise of ordinary care it was the duty of the plaintiff's decedent to make use of his faculty of sight. Had he done so he could not reasonably have concluded from the emblem and those words that the poles and wires were equipment of the Bell Telephone Company.
The undisputed evidence is that this installation and maintenance were in conformity with approved methods of the National Electrical Safety Code; that this code is nationally known and nationally recognized by electrical engineers as authority in the erection and maintenance of equipment for transmission and distribution of electrical energy. Upon this record the only reasonable conclusion to be reached is that the power company was not guilty of negligence in the erection and maintenance of this line.
Specification No. 4. "In transporting and distributing electric current along and just within the right of way of a traveled public road on uninsulated wires attached to poles of insufficient size and texture to withstand a slight impact, and in failing to exercise that care required of persons handling a dangerous agency."
This specification brings us to a consideration of the question whether the defendant was negligent in failing to reasonably anticipate such a result.
In 1 Shearman and Redfield on Negligence (Rev. Ed.), 50, Section 24, in discussing the doctrine of reasonable anticipation, it is said:
"Foresight, not retrospect, is the standard of diligence. It is nearly always easy, after an accident has happened, to see how it could have been avoided. But negligence is not a matter to be judged after the occurrence. It is always a question of what reasonably prudent men under the same circumstances would or should, in the exercise of reasonable care, have anticipated. Reasonable anticipation is that expectation created in the mind of the ordinarily prudent and competent person as the consequence of his reaction to any given set of circumstances. If such expectation carries recognition that the given set of circumstances is suggestive of danger, then failure to take appropriate safety measures constitutes negligence. On the contrary, there is no duty to guard when there is no danger reasonably to be apprehended. Negligence is gauged by the ability to anticipate. Precaution is a duty only so far as there is reason for apprehension. Reasonable apprehension does not include anticipation of every conceivable injury. There is no duty to guard against remote and doubtful dangers."
The citation of a few of the many authorities upon this subject will suffice to show the application of the rule.
In Palsgraf v. Long Island Rd. Co., 248 N.Y. 339, 162 N.E. 99, 59 A. L. R., 1253, Judge Cardozo, at page 342, uses this language:
"In every instance, before negligence can be predicated of a given act, back of the act must be sought and found a duty to the individual complaining, the observance of which would have averted or avoided the injury."
In Depue v. Flatau, 100 Minn. 299, 111 N.W. 1, in the first paragraph of the syllabus it is said:
"Whenever a person is placed in such a position with regard to another that it is obvious that if he does not use due care in his own conduct he will cause injury to that person, the duty at once arises to exercise care commensurate with the situation in which he thus finds himself to avoid such injury; and a negligent failure to perform that duty renders him liable in damages."
See, also, Johnston, Admr., v. United Fuel Gas Co., 112 W. Va. 578, 166 S.E. 118; Gerdes v. Booth Flinn, Ltd., 300 Pa. 586, 150 A. 483; Koehler, Admr., v. Waukesha Milk Co., 190 Wis. 52, 208 N.W. 901; Evers, Admr., v. Davis, 86 N.J. Law, 196, 90 A. 677.
Tested by this rule, can it be said that the power company would or should reasonably have anticipated that any person traveling by vehicular equipment upon this mud road, would accidentally get such equipment into the ditch and knock down the pole, and that the person so traveling would then with a hammer attempt to break the glass insulator for the purpose of disengaging the wire which suspended the pole upon the grader? We do not think that the power company should be held negligent for failing to foresee or to reasonably anticipate such a result.
There can be no escape from the conclusion that plaintiff's decedent and Stroble were solely responsible for bringing about the situation in which they found themselves and that the plaintiff's decedent directly brought about his own death when he got upon the grader with a hammer and in his attempt to break the glass insulator came in contact with the wire. The defendant had no warning, notice or knowledge of this situation, and the accident occurred without possibility of defendant doing anything to avoid or prevent injury to plaintiff's decedent. We have reached the conclusion that the result, as shown by this record, is not one that would or should have been reasonably anticipated from the erection and maintenance of this line.
The plaintiff failed to prove any actionable negligence on the part of the defendant and the judgment of the Court of Appeals therefore is correct and should be affirmed.
Judgment affirmed.
WEYGANDT, C.J., MATTHIAS and HART, JJ., concur.
TURNER, J., not participating.