Adam v. T. I. P. Rural Elec. Co-op.

• Citation: 271 N.W.2d 896
• Decision Date: 22 November 1978
• Docket Number: No. 61201,61201
• Parties: Steven J. ADAM, Appellee, v. T. I. P. RURAL ELECTRIC COOPERATIVE, Appellant.
• Court: United States State Supreme Court of Iowa

Page 896

271 N.W.2d 896

Steven J. ADAM, Appellee, v. T. I. P. RURAL ELECTRIC COOPERATIVE, Appellant.

No. 61201.

Supreme Court of Iowa.

Nov. 22, 1978.

John T. Ward and Robert M. Holliday of Wasker, Sullivan & Ward, Des Moines, for appellant.

Everett Meeker of Livingston, Day, Kehoe, Meeker & Bates, Washington, for appellee.

Considered by REYNOLDSON, C. J., and LeGRAND, McCORMICK, McGIVERIN and LARSON, JJ.

McCORMICK, Justice.

Defendant T.I.P. Rural Electric Cooperative appeals from judgment entered upon a jury verdict for plaintiff Steven J. Adam in his negligence action for personal injury damages based on an electrical accident. The questions concern the sufficiency of Adam's pleading and proof to support the verdict, the trial court's giving and refusal of certain instructions, and the constitutionality of the presumption of negligence under § 489.16, The Code, 1975. Although we find no merit in the utility's other contentions, we hold the trial court erred in refusing to give the substance of the utility's requested instruction on its claim that the sole proximate cause of the accident was negligence of Adam's employer. On that ground we reverse and remand.

Adam was employed by Iowa Culvert Builders, Inc., which had been hired by the board of supervisors to do culvert work in the summer of 1971 in connection with the widening of 7.5 miles of east-west White Pigeon Road in Keokuk County. The utility owned a 7200 volt three phase transmission line which ran parallel to the road in the right-of way, approximately one foot from the fence line. As the new right-of-way was staked out by the county engineer the utility moved its line to a corresponding position in it.

At the site of the accident involved here the line was on the south side of the road in its new position in the widened right-of-way. In the afternoon of August 16, 1971, Adam was one of a five-man crew engaged in putting in a new culvert directly beneath the transmission line. Dale Ferns was the culvert company superintendent in charge of the operation. A mobile crane with a bucket suspended from a 35-foot boom was being used to move cement from a truck to the work area. Adam's responsibility was to steady the bucket and dump the cement where it was needed.

At approximately 3:30 p. m., while Ferns was temporarily absent from the job site, Adam reached out to steady a bucket of cement. The crane boom or cable contacted the electricity in the transmission line and Adam received a severe electrical shock which knocked him unconscious and injured him seriously.

Adam subsequently brought this action against the utility seeking damages for his injuries. He alleged eight grounds of negligence and at trial relied on the presumption of negligence in § 489.16, The Code, 1975. The utility contended he could not rely on the statute because he did not plead it and because it is unconstitutional. In addition the utility sought a directed verdict based on insufficiency of the evidence to support Adam's claim, excepted to instructions submitting two specifications of negligence, objected to the court's refusal of its requested instruction on its defense, and, after the verdict for plaintiff, moved alternatively for judgment notwithstanding the verdict or for new trial on the same grounds. In this appeal the utility assigns the adverse trial court rulings on these issues as error.

I. The presumption of negligence of § 489.16, The Code, 1975. In material part § 489.16, The Code, 1975, provides the following as to transmission lines under the jurisdiction of the state commerce commission: "In case of injury to any person or property by any such transmission line, negligence will be presumed on the part of the person or corporation operating said line in causing said injury, but this presumption may be rebutted by proof." This provision is § 478.16 in the 1977 Code.

The utility contends the trial court erred on three grounds in instructing the jury on the presumption. It asserts Adam did not plead the presumption, the statute denies due process and equal protection, and, in any event, the presumption was overcome by the evidence as a matter of law.

A. Pleading the presumption. The utility alleges that in order to obtain the benefit of the presumption a plaintiff must plead reliance upon it or plead the defendant's general negligence. This principle is established in Shettler v. Farmers Light and Power Company, 233 Iowa 1243, 1246, 11 N.W.2d 394, 396 (1943) "this presumption . . . would apply only where general negligence is pleaded", and Isaacs v. Eastern Light and Power Cooperative, 236 Iowa 402, 19 N.W.2d 208 (1945).

However, the principle does not help the utility here because Adam did plead the utility's general negligence. At least one of the eight allegations of negligence was general. In it Adam alleged the utility was negligent because it "did not restrain the electricity in its electric transmission line from escaping and electrocuting the plaintiff . . .". This allegation simply accuses the utility of causing the accident by failing to exercise due care to prevent it. It is general rather than specific.

All of the allegations of negligence were contained in the same count of the single-count petition, but this is permitted under rule 69, Rules of Civil Procedure. See also Eaves v. City of Ottumwa, 240 Iowa 956, 968, 38 N.W.2d 761, 768 (1940).

Adam's pleading was sufficient to invoke the statutory presumption.

B. The constitutionality of the statute. The utility attacks the statute on due process grounds under the Fourteenth Amendment and Article I § 9 of the Iowa Constitution. The attack is predicated on the argument that "there is no rule defining the quantum of proof necessary for rebuttal." However, there is such a rule. In Isaacs v. Eastern Iowa Light & Power Co-op., 236 Iowa 402, 407, 19 N.W.2d 208, 210 (1945), the court said: "To overcome the presumption the evidence must be clear and convincing."

Under this rule the presumption permits a finding of negligence unless the trier of fact is persuaded by clear and convincing evidence that the utility was not negligent. The issue can be taken from the trier of fact only when the court can say as a matter of law the rebutting evidence was of such magnitude that it completely overcame the presumption at all points. Id.

A presumption of this kind does not abridge due process under the federal or state constitutions. Mobile, J. & K. C. R. R. v. Turnipseed, 219 U.S. 35, 31 S.Ct. 136, 55 L.Ed. 78 (1910). It is not irrational for a legislature to require a utility to prove its due care when defending against claims for injury to person or property caused by the escape of electricity from its transmission lines. See Peterson v. Iowa State Commerce Comm., 256 Iowa 964, 129 N.W.2d 656 (1964); IV Wigmore on Evidence § 1356a (Chadbourn Rev. 1972); McCormick on Evidence § 344 at 817-819 (Second Ed.1972).

We find no merit in the utility's due process attack on § 489.16.

The utility argues that the statute denies equal protection because it arbitrarily discriminates against rural utilities. This is based on the fact the statute is not applicable to injuries caused by transmission lines located within cities and towns. See Taschner v. Iowa Electric Light and Power Company, 249 Iowa 673, 86 N.W.2d 915 (1957).

The problem with this argument is that the statute does not make the classification which is challenged. It does not purport to say negligence is presumed when injury is caused by a line outside municipal boundaries but not when injury is caused by a line within them. Rather, it says negligence is presumed when injury is caused by a transmission line covered by the provisions of chapter 489 of the 1975 Code. In turn, the Code chapter establishes the jurisdiction and franchise authority of the state commerce commission over transmission lines located outside of municipalities. § 489.1, The Code, 1975. The legislature separately vested cities and towns with jurisdiction and franchise authority over utilities within municipalities. § 364.2, The Code, 1975.

Thus, the legislature created the statutory presumption for lines over which it gave jurisdiction to the commerce commission. It left it to cities and towns to determine whether a similar provision should govern lines within their jurisdiction. The resulting classification is based upon the principle of municipal autonomy, now exemplified in the home rule amendment to the Iowa Constitution. See Bechtel v. City of Des Moines, 225 N.W.2d 326 (Iowa 1975). This principle furnishes a rational basis for the classification under principles explained in City of Waterloo v. Selden, 251 N.W.2d 506 (Iowa 1977).

The legislature did not deny rural utilities equal protection by authorizing municipalities to decide for themselves what regulations to impose upon transmission lines within their boundaries.

The utility's equal protection attack on § 489.16 is without merit.

C. Sufficiency of evidence to rebut the presumption. In seeking a directed verdict and in excepting to the trial court's instruction on the presumption, the utility contended its evidence had rebutted the presumption as a matter of law.

This court has found the evidence sufficient to overcome the presumption as a matter of law in only one case, Nelson v. Iowa-Illinois Gas and Electric Company, 160 N.W.2d 448 (Iowa 1968).

One controlling fact is sufficient to distinguish the present case from Nelson. In that case the utility "did not have the slightest notice or knowledge the crane was to be used near its line. It learned of the project only after decedent was electrocuted." Id. at 453. In the present case the utility had notice of the culvert company's activities near its line.

The utility's line superintendent met with culvert company superintendent Ferns on July 13, 1971, more than a month before the accident. The men discussed the danger of the culvert company's work interfering...