Osborne v. Tennessee Elec. Power Co.

• Citation: 12 S.W.2d 947,158 Tenn. 278
• Parties: OSBORNE v. TENNESSEE ELECTRIC POWER CO.
• Decision Date: 21 January 1929
• Court: Supreme Court of Tennessee

12 S.W.2d 947

158 Tenn. 278

OSBORNE v. TENNESSEE ELECTRIC POWER CO.

Supreme Court of Tennessee.

January 21, 1929

Certiorari to Court of Appeals, on Error to Circuit Court, Hamilton County; Oscar Yarnell, Judge.

Action by Willie Osborne against the Tennessee Electric Power Company. A judgment for defendant was reversed and the case remanded for a new trial by the Court of Appeals, and defendant brings certiorari. Affirmed.

Boyd W Hargraves and Ray & Valentine, both of Chattanooga, for plaintiff in error.

Brown & Spurlock, of Chattanooga, for defendant in error.

McKINNEY J.

This is an action to recover damages for the wrongful death of Gerald Osborne.

The trial court directed a verdict for the defendant. The Court of Appeals reversed the case and remanded it for a new trial. A writ of certiorari was heretofore granted by this court and the case has been argued by counsel at the bar of the court.

The deceased was employed as a fireman by the city of Alton Park a suburb of Chattanooga.

The defendant is the owner of certain lines transmitting electric current in the city of Chattanooga, and of Alton Park. Thirty-Third street, in Alton Park, is about 30 feet wide and runs east and west. The plant of the Crane Enamelware Company is located on the north side of said street between Tarlton and DeLong streets. There are a number of buildings on the south side of the street, including a two-story frame building about the middle of the block. There is a concrete walk on the south side of said street, in the northern edge of which poles have been erected by defendant upon which are strung seven wires, one of which transmits 11,400 volts of electricity. This was an emergency wire to supply St. Elmo, another suburb of Chattanooga, and a few houses in the vicinity of the Crane Enamelware plant. The current on this wire could be cut off without affecting the other wires. With the exception of this wire, the highest current transmitted on either of the other wires was 500 volts.

At the main plant of the defendant, which is two miles from the Crane Enamelware plant, a trouble department is maintained day and night, and a truck with two experienced linemen is kept in readiness to respond to any call, and it is a part of their duties to go to fires.

Under the fire alarm system in Chattanooga, the defendant is informed of a fire at the same time that the fire company receives notice.

About 11 o'clock on the night of June 7, 1928, Baldwin, a foreman at the Crane Enamelware plant, looked through a window and noticed that the two-story frame building across the street was on fire. The eaves of that house were 10 or 12 feet from the transmission line of the defendant, and a strong wind was blowing from the south.

Baldwin testified that after telephoning the fire department he noticed that the fire had broken through and was getting up through the wires, and he called the trouble department of the defendant and told the operator in charge "that there was a fire across the street from the Crane Enamelware Company's plant and that their wires were in danger and that they ought to cut them off." The reply was, "All right, we have got it."

Five minutes later Leon Spears, another employé of the Crane Enamelware Company, telephoned the trouble department of the defendant, and told them ""there was a fire out there and told them where it was and I told them there was some high voltage wires that were right in the blaze and that the current should be cut off from them." He further testified that he advised them as to ""the exact location of the fire."

The operator in charge of the trouble department of defendant testified that when he learned of the fire from the police department he immediately sent the two linemen in the truck to the fire, which was six or seven minutes before he received the first of several telephone messages from Alton Park, and that, in response to those calls, he replied that the truck and men were on the way.

After the alarm was sounded the fire truck, driven by Osborne, reached the fire in about 15 minutes. Osborne parked the fire truck about 10 or 12 feet north of a water plug located in the edge of the sidewalk, and from 120 to 160 feet east of the burning building. He had connected one hose with the fire plug and had it in use, and was on the north side of the engine connecting another hose, when the high-voltage wire burned in two, swung out into the street, struck the truck, and sent a voltage of electricity into the body of Osborne, resulting in his instant death. This string of wires was directly over the fire plug, and Osborne was about the middle of the street, or 15 feet north of said plug.

There is proof that Osborne was killed 30 minutes after the fire alarm was given, or 15 minutes after he arrived at the fire.

There is proof that the truck of the defendant, with the two linemen, did not arrive for 30 minutes after Osborne was killed. In other words, an hour intervened from the time the alarm was given until the truck and linemen of the defendant arrived.

The proof shows that the truck could be driven from the plant to the fire in from 6 to 12 minutes.

Following the general rule, we are stating the case from the plaintiff's standpoint. Most of these facts were controverted by the witnesses for defendant.

In holding that these facts made a case for submission to the jury the Court of Appeals said:

"Defendant in error insisted, and its proof tended to show, that it did all that it reasonably could after notice of the fire to relieve the situation of the menace of its wires, but whether after such notice as was indicated was received, it could, and should, by telephone orders have shut off the current, or have adopted the mode it did to further inform itself and act, and whether such investigations as it did make were with reasonable dispatch and efficiency under the circumstances, or whether the actions it did take were such that an ordinarily prudent man would have adopted under the circumstances, were questions for the jury and not for the court. * * *

Undoubtedly if timely informed of the character of the menace which their wires had become they owed the deceased that degree of care that any ordinarily prudent man would have used under the circumstances to relieve the situation of the particular peril of the wires, and that care, whether it was to turn off the current, or to send men two miles to cut the wires, or to take less efficient means, was commensurate with the danger to be avoided, and the deceased himself was obligated to use all means that an ordinarily prudent man would have used under the circumstances to look out for his own safety. These are the principles under which this case should be tried, and under which the proof must be measured."

Counsel for defendant in their brief say:

"We fully recognize, as we have heretofore indicated, that the defendant under the law is required to exercise the highest degree of care in the maintenance and operation of its plants and its poles and wires, particularly when constructed along public streets, and, furthermore, that this duty comprehends not only the public in general, but exists in favor of individuals lawfully and

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