Mississippi Power & Light Co. v. Whitescarver, 6790.

• Decision Date: 02 March 1934
• Docket Number: No. 6790.,6790.
• Citation: 68 F.2d 928
• Parties: MISSISSIPPI POWER & LIGHT CO. v. WHITESCARVER et al.
• Court: U.S. Court of Appeals — Fifth Circuit

68 F.2d 928 (1934)

MISSISSIPPI POWER & LIGHT CO. v. WHITESCARVER et al.

No. 6790.

Circuit Court of Appeals, Fifth Circuit.

February 2, 1934.

Rehearing Denied March 2, 1934.

Marcellus Green, Garner Wynn Green, and Forrest B. Jackson, all of Jackson, Miss., and R. L. Dent, of Vicksburg, Miss., for appellant.

J. F. Barbour, of Yazoo City, Miss., for appellees.

Before BRYAN, SIBLEY, and HUTCHESON, Circuit Judges.

SIBLEY, Circuit Judge.

On this appeal from a recovery of $7,500 for the negligent electrocution of one Whitescarver, the Mississippi Power & Light Company assigns as error the exclusion as evidence of an extract from a book and the refusal to direct the verdict in its favor. The declaration alleged as negligence among other things that the company maintained its power wires, carrying 13,000 volts, at an insufficient height where the death occurred, and that its representatives who were present just beforehand and knew what Whitescarver was about to do and the danger in it did not stop or warn him, and he, being ignorant of the danger, brought a metal pole which he was erecting against or near a wire and was killed by electricity from it. The outline of the evidence is as follows: Three power lines, bare and carrying 13,000 volts of electricity, were strung by virtue of a public franchise on common looking poles along the paved highway at the line of the adjoining fields and at a height between poles of 19 feet and 4 inches from the ground at a locality about one-half mile from the edge of the city of Leland. In the city and up to a few hundred feet from this place the poles were higher and were again higher just beyond it. A few weeks before Whitescarver's death the land in the vicinity, formerly a cotton field, had been cut up into lots and was auctioned off, and one Carollo had bought lots adjoining the highway and on them was building a home and a gasoline filling station. A week before the death of Whitescarver, Carollo had requested the Power & Light Company to arrange connections to light these buildings, and on the day previous to the death two linesmen were sent who strung the light wires to the buildings and installed on a pole near the filling station a transformer to reduce the voltage of the current for the lights. On the fatal morning, before these men left, Whitescarver, who was an employee of an oil company, arrived with a metal pole which, with the advertising sign at its top, was over 22 feet long, and he began digging a hole in which to plant the pole on the edge of Carollo's lot directly under the wires. This was seen by the linesmen of the company, and one of them says he gave Whitescarver warning that the wires carried a heavy voltage and were dangerous. The other testified he neither gave nor heard a warning, but he was in the filing station part of the time and it might have been given without his hearing it. Others working near at hand for Carollo say no warning was given in their hearing. A negro painter, Graves, testified that Whitescarver came to him at the rear of the filling station to borrow a ladder to use in raising the pole and asked him to help, and that he refused, stating that the wires were dangerous. He says he followed Whitescarver to the spot, however, and saw the occurrence. Carollo testifies that he got the ladder and Graves said nothing to him, but stayed behind the filling station where he was painting. Several others testify that Graves was painting there and did not come to the front until after the occurrence and then asked what had happened. Carollo and all the others say they were ignorant that the wires carried a heavy voltage and were dangerous or they would not have helped raise the pole, and that just before raising it one of them asked Whitescarver if there was danger in touching the wire and he answered that it would only tickle them if touched. As they all were raising the pole to place it in its hole, it touched a wire or came so near it that the electricity leaped to it. Whitescarver and another were instantly killed and three were shocked and burned. There was much varying testimony as to the usual and proper height for high voltage wires, that for the plaintiffs being that 22 feet was the minimum along rural highways, and that for the company placing the safe minimum at 18 feet. All agreed that they should be higher where there were buildings or other likelihood of their being touched. The company's superintendent in charge of these lines testified that he sent the two linesmen to put in the transformer and that if they saw any construction going on near a wire and that the wire was too close to the ground for safety, it would be their duty to report it, but not to raise the wire, and their instructions were to remain there until someone should come to help them clear up a hazardous condition.

On this testimony the court properly refused to instruct the jury to find for the defendant. He did tell them that Whitescarver was negligent, and that they must reduce the recovery, if any, accordingly, but left it to them to decide whether the company was also negligent and its negligence a proximate cause of the injury, and whether or not Whitescarver was warned, and, if so, whether his own rashness was not the sole cause of his death. Section 511 of Mississippi Code of 1930 provides that the negligence of the person injured shall not bar a recovery, but the damages shall be diminished...