Bowen & Son v. Iowa Public Service Co.

• Decision Date: 25 October 1929
• Docket Number: No. 8534.,8534.
• Citation: 35 F.2d 616
• Parties: BOWEN & SON v. IOWA PUBLIC SERVICE CO. et al.
• Court: U.S. Court of Appeals — Eighth Circuit

35 F.2d 616 (1929)

BOWEN & SON v. IOWA PUBLIC SERVICE CO. et al.^*

No. 8534.

Circuit Court of Appeals, Eighth Circuit.

October 25, 1929.

Samuel Levin, of Chicago, Ill., and Alva B. Lovejoy, of Waterloo, Iowa (Frederick D. Silber, of Chicago, Ill., and Walter P. Jensen, of Waterloo, Iowa, on the brief), for appellant.

Alfred Longley, of Waterloo, Iowa (B. J. Price, of Ft. Dodge, Iowa, on the brief), for appellees.

Before STONE, Circuit Judge, and MUNGER and REEVES, District Judges.

MUNGER, District Judge.

The appellant brought suit against the Central Iowa Power & Light Company, the Iowa Public Service Company, and the Citizens' Gas & Electric Company, seeking to recover damages for alleged negligence of the defendants. The Iowa Public Service Company and the Citizens' Gas & Electric Company answered to the plaintiff's petition, denying all its allegations of negligence, of injury, and of damages. An answer to the plaintiff's petition was filed by the Central Iowa Power & Light Company, but by leave of court this answer was withdrawn and a general demurrer to the petition was filed by the Central Iowa Power & Light Company. This demurrer was sustained by the court, an exception was taken, the plaintiff elected to stand upon its petition, an order of dismissal of the petition was entered, and the plaintiff has appealed. The only question to be considered is the sufficiency of the plaintiff's petition as against the demurrer of the Central Iowa Power & Light Company. The petition alleged that the plaintiff owned a factory building at Nashua, Iowa, and that on December 8, 1926, the defendant maintained and operated an electric transmission line consisting of poles and wires in close proximity to two sides of this building. These wires carried a current of electricity of 33,000 volts. The petition also alleged that a fire began in a corner of the building on that day. An alarm was given and the town fire department at once appeared with its fire fighting apparatus and was about to throw water through a hose upon the fire, and could have extinguished the fire at that time, but the town marshal by the order and direction of the local manager of the defendant's plant at Nashua, and of the engineer of this plant, ordered the members of the fire department not to turn on the water, because the wires were so close to the building that the electric current from them would cause the death of persons using the fire hose if a stream of water passed through it and reached the wires. Because of these instructions and because of the danger, the firemen failed to throw water upon the fire for 20 or 30 minutes, and until the current had been turned off from these wires. The result of this delay was the destruction of the building and of its contents by the fire. It is alleged that the defendant had no facilities in or near the town of Nashua for switching off the current of electricity in these wires and it became necessary to send a messenger by automobile to the town of Plainfield, eight miles away, in order to cut off the current. Some of plaintiff's specific allegations of negligence are as follows:

"Plaintiff alleges that the defendants were guilty of negligence, which was the proximate cause of plaintiff's loss and damages as follows:

"1. By maintaining its said wires and transmission line in such close proximity to plaintiff's building as to render it unsafe or impossible for the fire department of the town of Nashua to use safely the facilities at hand, as provided for that purpose, to extinguish the fire in said building.

"2. The defendants were negligent in that they maintained their transmission wires, charged with a dangerous current of electricity, in close proximity to plaintiff's buildings without installing or providing a switch, or switches, in the town of Nashua, or within a reasonable distance so that in case of fire, the electricity could be eliminated from said wires, thereby rendering it possible to use water to extinguish a fire without danger to human life.

"3. The defendants were negligent in failing to have or maintain within a reasonable distance some facilities or means whereby the electric current might temporarily be diverted from the transmission wires near said building.

"4. The defendants were negligent in that they failed and neglected to turn the current of electricity from said wires as soon as they knew that said building was on fire, or within a reasonable time after such knowledge, or to use any diligence or care or make any effort so to do.

"5. The defendants negligently failed to have an employee at the office in Plainfield, or accessible by telephone at Plainfield, whose duty it was to turn off the switch and thus eliminate from the wires near plaintiff's building, as aforesaid, the dangerous current of electricity with which they were charged.

"6. The defendants were negligent in that their employee, or employees, at Plainfield, if any, were not on duty at the time of the fire to turn off the current from the wires in question in order to render them safe for the firemen to fight fire by the use of water in the usual way.

"7. That the defendants were negligent, as a matter of law, in that they violated Section 5 of ordinance No. 38 of the town of Nashua, which was in force and effect at the time of the fire; that said section 5 of the ordinance reads as follows:

"Sec. 5. In the erection and construction of any of the conductors, transmission lines or distributing systems of the Company shall not in any way interfere with the ordinary drainage of the city, with the sewers, underground pipes, conduits, or any other property of the Town of Nashua, private person, or corporations, when in existence.'

"That the defendants in violation of the above quoted section of said ordinance did construct its conductors and transmission lines or distributing system in such a way as to interfere with the property of private persons or corporations, and particularly the plaintiff company, and particularly so interfered in the construction of certain transmission lines in such close proximity to plaintiff's building as to interfere with the firemen and make it unsafe for them to properly fight the flames in case of fire, and in failing under those circumstances to have at hand, or within reasonable access, methods and means for turning out the said dangerous current of electricity from its wires in the immediate vicinity of plaintiff's buildings so that the fire could be safely extinguished or controlled.

"8. That the dangerous current of electricity could have been turned out or switched from the said transmission line in the vicinity of plaintiff's said buildings and property by merely telephoning either to the town of Waverly or City of Charles City, where facilities had been and were then installed for that purpose; but that the defendants negligently failed to telephone to either of said points to order or request said dangerous current to be switched from said wires; and failed and neglected to do anything, or take any steps, or use any care or diligence in the premises.

"9. The defendants were guilty of negligence because in violation of section 8326 of the Iowa Code of 1927, they failed and neglected to install sufficient devices to automatically shut off electricity through said transmission lines wherever connection is made whereby current is transmitted from the wires of said transmission line to the ground."

In support of the ruling upon the demurrer, it is urged by the appellee that it was essential...