Manaia v. Potomac Electric Power Company

• Decision Date: 18 June 1959
• Docket Number: No. 7786.,7786.
• Citation: 268 F.2d 793
• Parties: George MANAIA, Jose Santos Gago, James R. Bice, Administrator of the Estate of Jose Lourenco, Deceased, State of Maryland to the use of Maria Da Conceicao Barreto, et al., Appellants, v. POTOMAC ELECTRIC POWER COMPANY, Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

268 F.2d 793 (1959)

George MANAIA, Jose Santos Gago, James R. Bice, Administrator of the Estate of Jose Lourenco, Deceased, State of Maryland to the use of Maria Da Conceicao Barreto, et al., Appellants, v. POTOMAC ELECTRIC POWER COMPANY, Appellee.

No. 7786.

United States Court of Appeals Fourth Circuit.

Argued January 23, 1959.

Decided June 18, 1959.

Sheldon E. Bernstein, Washington, D. C., and Herbert M. Brune, Baltimore, Md. (R. Edwin Brown, Harper M. Smith, Rockville, Md., and Newmyer & Bress, Washington, D. C., on brief), for appellants.

William B. Jones, Washington, D. C. (Robert R. Bair, Baltimore, Md., Cornelius Means, Hamilton & Hamilton, Washington, D. C., and Venable, Baetjer & Howard, Baltimore, Md., on brief), for appellee.

Before HAYNSWORTH, Circuit Judge, and PAUL and BOREMAN, District Judges.

HAYNSWORTH, Circuit Judge.

Two employees of a paving contractor were killed and five others injured when the boom of a crane with which they were working was brought so close to high voltage wires that the current arced to the crane's cable and was conducted to the ground through the bodies of the unfortunate men who were touching the crane's metal load. Apparently because the deaths and injuries were compensable under Maryland's workmen's compensation act, M.G.L.A. c. 152, § 1 et seq., these actions for wrongful death and personal injury were brought, not against the paving contractor whose negligence seems plain, but against the owner of the electric wires.

The District Court reserved its ruling upon motions for directed verdict, and, after verdicts for the plaintiffs, entered judgment for the defendant non obstante veredicto. In its full and careful opinion,¹ there is a very complete statement of the facts, which need only summary treatment here.

Potomac Electric Power Company (Pepco) owned a substation on the southwest corner of Old Bladensburg Road and Fern Street in Wheaton, Maryland, but set some distance back from the property line on each street. Among the circuits running into and from the substation is a 33,000-volt feeder, running west near the southern side of Old Bladensburg Road. This power line crosses Fern Street approximately 35 feet south of the southern side of Old Bladensburg Road, and corners on a pole slightly more than two feet from the western curb of Fern Street, each of its three wires being supported by three large, bell-shaped, suspension insulators in series. From that pole the three wires run southwesterly to terminals on the substation. No other overhead power lines cross Fern Street, though there is a line running south from the substation along the west side of Fern Street.

In 1955, Montgomery County decided to improve Fern Street. It was then an unimproved dirt road one and one-half to two blocks long, with only two or three buildings facing it.² Plans were sent to Pepco showing the proposed improvement. These plans called for a macadam surface for the northern part of Fern Street to a point at least twenty feet south of Pepco's power line crossing. South of that point, the plan provided for concrete surfacing. Pepco, accordingly, arranged to relocate several of its poles along Fern Street to clear the proposed work, and these relocations were accomplished. They included a relocation of the pole nearest Old Bladensburg Road, the one with the three series of heavy suspension insulators carrying the 33,000-volt feeder crossing Fern Street, this pole being moved a few inches to the west away from the western curb line of Fern Street. Otherwise, the crossing of this power line over Fern Street remained unchanged. A second set of plans was sent to Pepco, before the work was accomplished, identical with the first, as far as we are concerned, except that they bore a notation, for the paving contractor, requiring the use of concrete finishing machines on the concrete slabs, upon the basis of which the District Court assumed that Pepco had constructive notice that a mobile crane might, or probably would, be used to place the finishing machine upon its rails.

In July 1955, Montgomery County awarded a contract for the improvement of Fern Street to Sligo Engineering Company. Early in August, Sligo did the necessary grading, during which time Pepco was engaged in the relocation of its poles and facilities.³ After an interval of approximately thirty days, a mobile crane owned by Sligo brought in a concrete finishing machine, deposited it on the east side of Fern Street, and withdrew to work on other projects. On September 2, 1955, Sligo set rails to confine and measure the first concrete strip, upon which the finishing machine would run. At approximately 10:30 o'clock that morning, Sligo's mobile crane arrived on the scene and positioned itself beneath the overhead crossing of Pepco's power line. The body of the crane was north of the crossing, the crane operator estimating that the power lines were some five to ten feet south of his cab at the rear of the truck, and plainly in his view as he worked his 40-foot boom rearward and southward. Working, thus, immediately beneath the power line, the crane picked up the concrete finishing machine on the east side of Fern Street, south of the power line, and moved it into position over the rails north of the northernmost extremity of the proposed concrete strips, but still south of the power line. This required the crane operator to bring his boom close to the power line which was above and in front of him, the wires of which he was watching. His crewmen wished the machine positioned a few inches farther north, and, in response to their command, the operator, watching the wires of the power line all the while, raised his boom still closer to them.⁴ Within seconds, two of his crewmen were electrocuted and the others, in contact with the finishing machine, were injured.

The crane operator had previous experience with crane booms fouling electric lines. He knew that electricity would are to his metal boom, particularly on damp days, as that one was, when the boom and the ground were wet. Had he known the lines carried 33,000 volts, he would not have placed his boom within fifteen feet of them, he testified. He "assumed" the lines carried 1500 volts, but he stated no ground for his assumption, and he did not see the pole which supported the wires, the heavy insulators in series which carried them or the substation to which they ran, for he did not look. At the risk of his crewmen, he tested his baseless assumption without an inquiring glance to left or right.

The foreman, who directed the initial placement of the crane, did not testify.

Some of the surviving crewmen, who are plaintiffs, testified that they saw no power line for they did not look up, while others testified that they saw the wires but assumed they carried domestic current of 110 volts.⁵ If it may be supposed that the construction crewmen were ignorant of the fact that such domestic current must be taken down from moderately higher voltages by transformers not far distant from the loads, credulity is strained by the testimony of the chief executive officer of Sligo Engineering Company, whose offices were just to the rear of the substation, that he thought the three overhead wires on the heavy insulators were domestic current for the use of unapparent consumers. How far credulity may be strained here is of no importance, however, for the assumptions, without inquiry, of Sligo's executives and employees are immaterial to our present question. Pepco had a right to assume that a construction company and its construction crew would not intentionally foul its power line without a glance at the immediately adjacent pole and the insulators which carried the wires, the substation into which they led, or the area, without apparent domestic demand from this line, along its route, all of which shouted the fact of high voltage.

The plaintiffs went to pains to elicit testimony, upon which they strongly rely, that one looking at the wires, alone, could not tell what voltage they carried. Of course, one could not. Perhaps one moderately observant could tell from the wires themselves that they were not domestic service lines, as the crane operator seems to have realized, but, if the field of view is widened to include the obvious insulators which carried the wires and still further extended to include the substation and the course of the power line, all of which was in plain view, one with any knowledge of electricity and its distribution would know this was a high voltage line. Whether it actually carried 13,200, 33,000, 44,000 or some other voltage, an expert, perhaps, could not accurately tell immediately, but a reasonably informed amateur could tell that they carried a dangerous current and, if it was material to know, by a telephone call to Pepco, he could ascertain precisely what the voltage was.

It is thus apparent that this is not a case in which the plaintiffs were entrapped into contact with high voltage lines concealed from ordinary view, confusingly strung or deceptively re-energized.⁶ No fault is suggested in the line, its construction, maintenance or operation. Though the line, itself, should have given to one who looked warning to stand clear, plaintiffs contend that Pepco should have done something more to bring home to Sligo and its construction crew that the lines carried 33,000 volts. Had the construction crew consciously realized what the voltage was, it is said, it would have exercised greater care than it did to avoid the line's proximity.

Electricity is a dangerous thing and can work harm of such gravity upon one who comes into unintended contact with it, that power companies, rightly, have been required to exercise a very high degree of care to safeguard those whose lawful pursuit exposes them to the risk of inadvertent contact with the power lines. Conowingo Power Co. v. State of Maryland, 4 Cir., 120 F.2d 870; Smith v. Appalachian Electric Power Co., ...