113 S.E. 711 (Va. 1922), Appalachian Power Company v. Hale
| Docket Number | . |
| Citation | 113 S.E. 711,133 Va. 416 |
| Date | 21 September 1922 |
| Parties | Appalachian Power Company v. J. H. Hale, Administrator of R. M. Hale, Deceased |
| Court | Virginia Supreme Court |
Page 711
Error to a judgment of the Circuit Court of Smyth County, in an action of trespass on the case. Judgment for plaintiff. Defendant assigns error.
Affirmed.
SYLLABUS
The opinion states the case.
OPINION
[133 Va. 419] This is an action against the Appalachian Power Company, to recover damages for the death of R. M. Hale, deceased. The jury returned a verdict in favor of the plaintiff for $ 7,500.00, and the court entered judgment accordingly. To that judgment this writ of error was awarded.
For convenience, the parties will be designated as plaintiff and defendant, with respect to their positions in the trial court.
The Appalachian Power Company is the owner of an electric power line in Southwest Virginia, which runs through Smyth county. The line is composed of a number of wires each carrying 88,000 volts of electricity.
In November, 1920, a severe storm of sleet and snow caused one of these wires to break and fall to the ground on the land of Mrs. E. V. Horn. On the night of the break the lineman and his helper temporarily repaired it by splicing in about fifty feet of additional wire between the broken ends and pulling the wire out to a tree forty-six feet from the regular location of the power line and fastening it to the tree by means of another wire running about ten or fifteen feet from the tree -- insulators being used between the wire on the tree and the power line thus pulled from its proper location. The two poles supporting the power line, where the break occurred, are 297 feet apart. The distance from the tree to the west pole is 252 feet, and from the tree to the east pole sixty-six feet. The line, at the point of repair, was so fastened together and to the tree that it sagged to within five feet of the ground, at a point between the tree and the nearest pole to the west.
The line thus repaired was put back into service, and remained in this condition until Sunday, November 21st. On Saturday, November 20th, about 11 o'clock [133 Va. 420] a. m., the plaintiff's intestate, R. M. Hale, who was employed by Mrs. Horn, was engaged in hauling wood from her land, where the break in the power line occurred. Mrs. Clara James, a daughter of Mrs. Horn, was assisting him in piling and loading the wood. Deceased had hauled several loads, and while he was gone with a load Mrs. James brought some wood together in a pile, near the point of the accident. Upon his return, and after stopping his team at a point indicated by Mrs. James, the deceased walked toward the power line, and, possibly, in attempting to go under the sagging wire either came in contact with it, or came so near to it, that the electricity jumped to him and burned him so severely that as a result thereof he died the next morning.
The negligence charged in the declaration consists in the defendant wrongfully and
Page 712
negligently permitting its light and power line to sag within four or five feet of the ground, and permitting the said wire, charged with 88,000 volts of electricity, to remain in said position for a long period of time, to-wit, six days. The defendant, in its grounds of defense, relies upon the contributory negligence of Robt. H. Hale, the plaintiff's intestate, as a defense to the action.
The plaintiff's right to recover must depend upon the answers to two questions:
1. Was the defendant guilty of negligence which was the proximate cause of the death of the plaintiff's intestate; and
2. Was the plaintiff's intestate guilty of negligence which contributed to or directly brought about his injury?
(a) Was the defendant negligent?
It is admitted that one of the wires in the defendant's high tension electric transmission line, where it crossed [133 Va. 421] the Horn farm, was broken by the weight of an unusually heavy sleet. The sleet occurred, according to some of the witnesses, on Monday, November 15th, or Tuesday, November 16th, 1920. The defendant's lineman, King, testified that when the sleet broke the line the company called him out to locate the break, and that he located it and finished repairing it on Wednesday night, November 17th, about twelve o'clock, instead of Monday or Tuesday night, according to some of the testimony.
King's assistant, Medley, testified that the ice on the wire was about an inch and a half thick when they repaired the line. B. B. Roberts testified that the sleet came on Monday and that on Wednesday there was but little ice in Smyth county, except on the mountain. C. L. Jennings testified that he lived about a mile and a quarter from the Horn place and that on Wednesday, November 17th, the ice was all off the trees at the foot of the mountain. Mrs. Clara James testified that the heavy sleet fell on Monday night, the week Hale was electrocuted. R. H. Sage also testified that the heavy part of the storm fell on Monday night.
King and his assistant, Medley, testified that they took a piece of wire and spliced the broken wire and pulled it out about fifty feet from the location of the main line and made it fast to a tree; that the wire spliced in was so securely fastened at each end of the broken wire that it could not and did not slip; that the wire running from the two poles towards the tree was partly covered with ice and drawn as tight as it could be drawn; that the power wires are so fastened to the individual poles that the line cannot slip, and that any slack which might exist between any two poles could not be projected over between other poles; that [133 Va. 422] when they completed the repair work the line between the tree and the poles did not come nearer than thirteen feet to the ground. According to their testimony, while they cannot account for it, the wire sagged from thirteen feet to within five feet of the ground after the ice melted from the wire. This would seem physically impossible as the removal of the weight of the ice ought to have caused the line to swing higher from the ground, and it must be true that if they measured the distance between the wire and the ground at all it was the wire between the tree and the east pole, and that in the darkness of the night they failed to measure the distance between the ground and the wire leading to the west pole and that this wire was left within five feet of the ground, where it was found on the morning of the accident.
When the line was thus temporarily repaired the lineman reported the fact to the managing office of the company and the current was turned on, and the line remained in that condition and was not permanently repaired and put in its proper position until Sunday, November 21st. The defendant's excuse for the delay was that the lineman and his assistant were hunting for telephone troubles and did not have the time to return to the Horn farm.
It was the duty of the defendant to employ a sufficient number of men to keep the line in a reasonably safe condition, and on the occasion of breaks in the line to employ extra men, if necessary, for that purpose.
The fallen wire was in Mrs. Horn's pasture field, where her cattle and horses were kept, near her house, but the lineman failed to give notice thereof to her or her employees, either in...
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