622 P.2d 1066 (Okla. 1980), 51510, Kimery v. Public Service Co. of Oklahoma

Docket Nº:51510.
Citation:622 P.2d 1066
Party Name:Donna J. KIMERY, Brenda Kimery, Donna J. Kimery as Mother and Next Friend of Kathryn Kimery and Samuel E. Kimery, Jr., Appellants, v. PUBLIC SERVICE COMPANY OF OKLAHOMA, Appellee.
Case Date:December 09, 1980
Court:Supreme Court of Oklahoma
 
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Page 1066

622 P.2d 1066 (Okla. 1980)

Donna J. KIMERY, Brenda Kimery, Donna J. Kimery as Mother

and Next Friend of Kathryn Kimery and Samuel E.

Kimery, Jr., Appellants,

v.

PUBLIC SERVICE COMPANY OF OKLAHOMA, Appellee.

No. 51510.

Supreme Court of Oklahoma.

December 9, 1980.

Rehearing Denied Feb. 17, 1981.

Page 1067

[Copyrighted Material Omitted]

Page 1068

Appeal from the District Court, Tulsa County; B. R. Beasley, District judge.

The surviving widow and children of Samuel E. Kimery (decedent) brought a wrongful death action against Public Service Company for the wrongful death of decedent. Decedent was electrocuted when he and his co-worker were painting an industrial building and their aluminum ladder came into contact with high voltage lines owned by Public Service Company.

The jury returned a general verdict for Public Service Company and judgment was rendered accordingly. Appellants appeal from the order overruling their motion for a new trial.

AFFIRMED.

Don L. Dees, Inc. by Glenn P. Bernstein, Tulsa, for appellants.

Robert W. Blackstock, Bristow, Doerner, Stuart, Saunders, Daniel & Anderson by Stephanie K. Seymour and G. Michael Lewis, Tulsa, for appellee.

IRWIN, Vice Chief Justice:

Samuel E. Kimery was electrocuted when he came into contact with a high-voltage line owned and maintained by Public Service Company (PSC). His survivors (appellants) brought a wrongful death action against PSC. The jury returned a general verdict for PSC and judgment was rendered accordingly. Appellants appealed.

The essential facts are not in dispute. 1 Kimery (decedent) and a co-worker were killed while painting an industrial building in Southwest Tulsa, Oklahoma. PSC had installed uninsulated high-voltage lines to

Page 1069

service the metal building being painted. The lines ran adjacent to and approximately ten feet away from the building. Decedent and his co-worker were repeatedly warned by the superintendent of the company whose building was being painted that the lines were dangerous. While moving an aluminum extension ladder alongside the building, contact was made between the high voltage lines and the ladder and decedent and his co-worker were electrocuted.

Appellants alleged that decedent's death was the result of negligence on the part of PSC in failing to safely locate the high-voltage lines despite the foreseeability of the presence of workmen dangerously close to such lines, and in failing to adequately warn of the hazard created by them. PSC's primary defense rested on a claim of ordinary contributory negligence and contributory negligence per se resulting from decedent's alleged violation of 63 O.S.1971 § 981 et seq., commonly referred to as the "six-foot law".

Appellants first contend that the "six-foot law" is unconstitutional and that it was reversible error to instruct the jury that a violation of the "six-foot law" by the decedent would constitute negligence per se. The pertinent provision of the "six-foot law" is as follows:

"No person, firm, corporation or association shall, individually or through an agent or employee and no person as an agent or employee of any person, firm, corporation or association, shall perform or permit any agent or employee to perform any function or activity upon any land, building, highway or other premises, when it is possible during the performance of such activity for any person or employee engaged in performing work connected with or related to such function or activity to move or to be placed in a position within six feet of any high voltage overhead electrical line or conductor, or when it is possible for any tool, equipment, machinery or material to be used by any such person or employee to be brought within six feet of any such overhead high voltage line or conductor through any lateral, vertical or swinging motion during the performance of such function or activity." 63 O.S.1971 § 981.

Appellants assert that this statute is unconstitutional for three reasons: first, that it fails to require an electrical utility company...

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