Sutton v. Monongahela Power Co.

Citation158 S.E.2d 98,151 W.Va. 961
Decision Date05 December 1967
Docket NumberNos. 12656 and 12657,s. 12656 and 12657
CourtSupreme Court of West Virginia
PartiesDella Jane SUTTON, Administratrix, etc. v. MONONGAHELA POWER CO., a Corporation, et al. Della Jane SUTTON, Administratrix, etc. v. MONONGAHELA POWER CO., a Corporation, and Chester Addington, etc.

Syllabus by the Court

1. Where a ten year old child climbs a high sawdust pile at an abandoned sawmill and comes in contact with an electric power line sagging to within about two feet of the pile and is thereby electrocuted, it becomes a jury question ordinarily as to whether the two situations, neither of which by itself might constitute a dangerous condition, combine to produce joint liability on the part of the owner of the land and the owner of the power line, if other factors allow recovery.

2. 'The doctrine of res ipsa loquitur cannot be invoked if defendant does not have control or management of the premises or operations where the accident occurred; or where there is divided responsibility, and the unexplained accident may have been the result of causes over which defendant had no control.' Pt. 1, syllabus, Laurent v. United Fuel Gas Co., 101 W.Va. 499, 133 S.E. 116.

3. Even though a child is a trespasser on the property of a third party, he is not a trespasser as to one who maintains electric wires either on or in such proximity to the lands of the third person that the child while on such lands or objects on such lands may come in contact with the wires.

4. 'An owner or proprietor of a dangerous instrumentality must exercise reasonable care to avoid injury to a trespassing child whose presence at the time and place of danger was either known to the proprietor or might reasonably have been anticipated.' Pt. 1, syllabus, Adams v. Virginian Gasoline & Oil Co., 109 W.Va. 631, 156 S.E. 63.

5. A power company has the duty to inspect the power lines at reasonable intervals and this duty exists in both urban and rural areas.

6. 'A company maintaining an electric line, over which a current of high and dangerous voltage passes, in a place to which it knows or should anticipate others lawfully may resort for any reason, such as business, pleasure or curiosity, and in such manner as exposes them to danger of contact with it by accident or inadvertence, is bound to take precaution for their safety by insulation of the wire or other adequate means.' Pt. 2, syllabus, Love v. Virginian Power Co., 86 W.Va. 393, 103 S.E. 352.

7. 'Those who operate and maintain wires charged with dangerous voltage of electricity are required to exercise a degree of care commensurate with the dangers to be reasonably apprehended therefrom; but they are not insurers against all injury therefrom.' Pt. 1, syllabus, Maggard v. Appalachian Electric Power Co., 111 W.Va. 470, 163 S.E. 27.

8. 'A person in charge of or maintaining an instrumentality inherently dangerous is not liable to one who is injured thereby in a manner which could not be reasonably anticipated.' Pt. 3, syllabus, Musser v. N. & W. Ry. Co., 122 W.Va. 365, 9 S.E.2d 524.

9. In cases involving a landowner and an easement over the land both the landowner and holder of the easement have mutual rights and duties, and if a fatal injury is caused by the combination of negligence both on the part of a power company having a transmission line easement and a landowner and without such combination the fatal injury would not have occurred, both the landowner and the power company would be guilty of concurrent negligence.

William W. Talbott, A. L. Sommerville, Jr., Webster Springs, William M. Kidd, Sutton, for appellant Della Jane Sutton.

Ernest V. Morton, Jr., Webster Springs, Furbee, Amos, Webb & Critchfield, Alfred J. Lemley, Fairmont, for appellees Monongahela Power Co.

BERRY, Judge.

These two appeals have been consolidated for disposition inasmuch as the same facts control the issues involved in both appeals. This action was instituted in the Circuit Court of Webster County, West Virginia, by Della Jane Sutton as Administratrix of the Estate of Richard Irland Sutton, deceased, appellant in case number 12656 and appellee in case number 12657, to recover damages for the alleged wrongful death of plaintiff's decedent. Plaintiff's decedent, Richard Irland Sutton, a ten year old infant, was electrocuted on June 24, 1964, when he fell on a 2400 volt electrical transmission line owned by the defendant Monongahela Power Company, a Corporation, appellee in appeal number 12656, while the said infant was playing on a sawdust pile located on land owned by Chester Addington, appellant in case number 12657. At the conclusion of the plaintiff's evidence the trial court directed a verdict in favor of both the defendant Monongahela Power Company, appellee herein, and Chester Addington, appellant herein. Upon motion of the plaintiff to set aside the directed verdict in favor of both the defendants and to grant to her a new trial, the trial court on June 2, 1966, sustained the motion of the plaintiff as to the appellant Chester Addington, the landowner, and awarded her a new trial against him, but overruled the motion to grant to her a new trial as to the appellee Monongahela Power Company.

The plaintiff, Della Jane Sutton, Administratrix of the Estate of Richard Irland Sutton, deceased, applied for an appeal for the refusal of the trial court to grant to her a new trial against the Monongahela Power Company, and the defendant landowner Chester Addington applied for an appeal relative to the trial court's granting a new trial as to him. Both appeals were granted by this Court on March 13, 1967 to the judgment of the trial court on June 2, 1966, the two appeals were heard together on arguments and briefs of the respective parties and submitted for decision at the September, Regular Term, 1967, of this Court.

On June 24, 1964, the plaintiff's decedent, with four other boys around his own age, one of whom was his brother, Kenny Ray Sutton, 11 years of age, and three brothers, Darrel Ray Morris, Bobby Morris and Carl David Morris, respectively 9, 10 and 12 years of age, using four bicycles, had been in search of bicycle parts and had visited various places in their search for the parts but were unsuccessful in obtaining them. Around two o'clock in the afternoon, at the suggestion of Carl David Morris, the oldest of the group of boys, they went to the site of a former sawmill where Carl had apparently visited on another occasion. The mill had burned in February, 1964, but there was on this property owned by Chester Addington and previously used in connection with the sawmill a pond and the sawdust pile some thirty feet in height. The property was located in a rural area and there was only one house in the immediate vicinity, the residence of Mr. and Mrs. Russie Hardway. There was a public road ending at the sawmill premises and the sawdust pile was located about a mile and a quarter from the home of plaintiff's decedent, but could not be seen from the home.

Upon arriving at the sawdust pile, pond and burned sawmill the boys parked their bicycles near the sawdust pile and after looking around the area started climbing and sliding down the sawdust pile. A wire was observed by one or more of the boys and some discussion was had among them as to whether or not it was a charged electrical wire. This statement was heard by Mrs. Hardway who lived nearby. She also testified that she heard one of the boys say that he observed a 'no trespassing' sign on the premises. The boys avoided the wire by either crawling under or stepping over it on the first occasion of climbing and sliding down the sawdust pile but apparently on the second trip the plaintiff's decedent, while near the wire, was thrown upon it by a sliding of the sawdust and he fell with his neck across the wire and was instantly electrocuted. One of the Morris boys attempted to pull him off the wire and he was rendered unconscious by the contact. One or more of the boys ran over to the Hardway home and Mrs. Hardway called the fire department at Cowen which arrived about fifteen minutes later, and about five minutes afterwards employees of the Power Company arrived and turned off the power near the road and then cut the wire so that the child could be removed from it. The line in question was located on poles which ran through the property of Chester Addington. There are three spans of unequal lengths in that immediate area. One of the poles was near the road, another near the sawdust pile and a third was located on a hill above the sawdust pile. The power line ran near the top of the sawdust pile but slightly to the side between 2 and 2 1/2 feet from the sawdust pile. The evidence indicated that the pole near the sawdust pile was one foot out of line as compared to the other two poles, and that the power line sagged about four feet three inches, causing it to lean toward the sawdust pile. The spans between the poles were in the neighborhood of seven hundred feet and it was the contention of the plaintiff that the distance between the pole or poles violated the construction requirements of the National Electrical Safety Code governing such matters, as required by the rules of the Public Service Commission of West Virginia which have been given the effect of the statute in this State.

The evidence also shows that the base of the pole near the sawdust pile was set in soft sawdust and one of the witnesses who testified on behalf of the plaintiff stated that he had inserted a pole through this soft sawdust for a distance of five feet at the base of the pole. There was also testimony that there were big rocks located around the base of the pole but that there were no guy wires on the pole.

The sawmill in question was formerly owned by James Berthy who operated it from 1947 until about 1957 at which time he sold it to Chester Addington. Addington operated it until it burned in February, 1964....

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