Ahearn v. Florida Power & Light Co., 623

• Decision Date: 26 April 1961
• Docket Number: No. 623,623
• Citation: 129 So.2d 457
• Parties: Rita S. AHEARN, a widow, Appellant, v. FLORIDA POWER AND LIGHT COMPANY, a corporation, Appellee.
• Court: Florida District Court of Appeals

Page 457

129 So.2d 457

Rita S. AHEARN, a widow, Appellant, v. FLORIDA POWER AND LIGHT COMPANY, a corporation, Appellee.

No. 623.

District Court of Appeal of Florida, Second District.

April 26, 1961.

Rehearing Denied May 18, 1961.

Fowler, White, Gillen, Yancey & Humkey, Tampa, and Berryhill, Leaird & Tedder, Fort Lauderdale, for appellant.

Fleming, O'Bryan & Fleming, Fort Lauderdale, for appellee.

KANNER, Judge.

In an action against the defendant, Florida Power and Light Company, by the plaintiff, Rita S. Ahearn, for wrongful death of her husband by electrocution, the defendant, at the close of plaintiff's case in chief, moved for a directed verdict. The motion was granted by the trial judge and this appeal was brought from the final judgment consequent upon the directed order.

Based upon plaintiff's first appeal point, this court found that 'since the directed verdict was not restricted to the evidence of plaintiff's case in chief, the trial judge committed reversible error' and remanded the cause for new trial. On certiorari, the Florida Supreme Court ruled that the decision thus rendered was obviously based upon the assumption that the trial court erroneously considered testimony of the defendant's witnesses taken out of turn and was in conflict with Florida cases supporting the established rule of appellate practice that the judgment of the court below is presumed to be correct and free from error. The Supreme Court quashed the decision and remanded the cause to this court for adjudication of the plaintiff's remaining two points. See Ahearn v. Florida Power & Light Company, Fla.App.1959, 113 So.2d 751; and Florida Power & Light Company v. Ahearn, Fla.1960, 118 So.2d 21.

Points two and three of plaintiff's appeal assert that the trial judge erred in directing a verdict for the defendant under the issues of (2) whether the plaintiff made out a prima facie case of negligence against the defendant and (3) whether the plaintiff's deceased husband was guilty of negligence which proximately contributed to cause his own death as a matter of law.

A precis of the basic facts of plaintiff's case will here be given. Ahearn, plaintiff's decedent, was electrocuted when the boom of a crane made contact with high tension wires of the defendant. Arrangements with Ahearn's employer, Hercules Pile Co., for use of a large Manitowac crane and a crew of two men had been made by Sunshine Contractors, Inc., who in turn had been engaged by the power company to construct a culvert under State Road 84 in Broward County, Florida. The construction was in connection with operation of defendant's electric power plant at Dania, to which certain additions and improvements had been made.

The crane was to be used in that project to drive pilings where necessary and, prior to being brought to the culvert site, it had been used at defendant's Dania plant on the same project of which the culvert construction was a part. In that project, Ahearn supervised the entire pile driving operation for the Hercules Company. The crane, prior to the accident, was stated on the power company's property. During work done by Hercules at the Dania plant, wires had been de-energized at times when heavy machinery was being used. Where the power company knew of work being done near its wires, warnings had been issued, stickers posted in cranes and on other heavy equipment, safety men posted at the scene, and wires de-energized or insulated. Each employee of the power company was instructed to watch and warn of danger. During June and early July, a safety inspector was present at the culvert site practically all the time. At the time of the accident, no safety man was on duty, no warning had been given, no safety signs were posted, and the wires across the road had not been insulated nor de-energized. The weather was clear and the wires were visible. Ahearn was a graduate civil engineer and was experienced in pile driving operations. As construction superintendent for Hercules, he had accompanied the crane and its crew to the job site to superintend the operation.

State Road 84 in the area under consideration runs east and west. Electric distribution lines running parallel to the highway and along the south side of it were owned and maintained by the power company. At a point 132 feet east of the site of the proposed culvert and at a height of approximately 30.8 feet, the power company also had high tension wires, uninsulated and carrying 7,600 volts which ran from south to north across that roadway. These wires, after crossing the highway, entered a transformer located on a pole on the north side of the highway, where the voltage was reduced to 220; from there they ran to a small cabinet shop. The purpose of the line crossing the highway was to service the cabinet shop, and the line running from the transformer to that shop was insulated.

Mounted in a vehicle called a lowboy, the crane was transported to the scene from defendant's property, approaching from the east and being unloaded on the north side of State Road 84 just east of defendant's wires. It was then necessary that the crane proceed to the west along the road and pass under defendant's wires in order to reach the job site. It was maneuvered into position, facing west; the boom, 62 feet long and extending fifty feet from the cab of the crane, was lowered into a position almost horizontal with the road and about fifteen feet above it and was stationary. In order that the crane be prepared for its work, it had to be rigged. This process necessitated anchoring the crane's cable to a solid object, then raising the boom into a perpendicular position and fitting it with a brace known as a gantry.

Between the culvert and the high tension wires crossing the highway were certain concrete pilings heavy enough to be used as an anchor. Ahearn and one crew member grasped the hook on the cable, which hung straight down from the end of the boom directly in front of the cab of the crane. By arm motion, Ahearn signalled the crane operator to move the crane forward; then he and the crew member turned and began walking westward toward the culvert and the pilings stacked there, stripping the cable off the reel. Neither man looked back from that time on. No other signals were given. The crane began to move forward, stopped, backed up a bit, then proceeded forward again. At this time, the boom began to rise and continued to rise until it made contract with the wires. Upon contact, both men were killed instantly.

During trial, plaintiff put on twelve witnesses. Of these, three were put on out of turn for the defendant power company. Approximately 185 pages of the total testimony represent that of plaintiff's twelve witnesses during her entire case in chief, while 78 pages represent testimony of the three witnesses put on out of turn for the defendant. There was extensive cross questioning by both sides, and the record contains numerous exhibits, including 24 photographs for the plaintiff and ten for the defendant.

At the close of plaintiff's testimony in chief, upon motion of the defendant, the court directed the jury to return a verdict for the defendant. ¹ In arriving at our determination of plaintiff's two appeal questions, we must proceed with awareness of the principles concerning the limits to which a trial judge is confined in directing a verdict and to which we are confined in considering the cause on appeal.

Ordinarily, issues of negligence or contributory negligence comprise questions to be determined by a jury. Saunders v. Kaplan, Fla.App.1958, 101 So.2d 181. A court, in exercise of its power to direct a verdict, should use caution and should never grant a motion for the same unless under no view which the jury might lawfully take of the evidence favorable to the adverse party could a verdict for that party be sustained. Katz v. Bear, Fla.1951, 52 So.2d 903; and Cutchins v. Seaboard Air Line Railroad Company, Fla.1958, 101 So.2d 857. In moving for a directed verdict, the movant admits every conclusion favorable to the adverse party which a jury might freely and reasonably infer from that evidence. Nelson v. Ziegler, Fla.1956, 89 So.2d 780; Kilgore Seed Company v. Pearce, Fla.1958, 103 So.2d 112. Where the circumstances are such that fair-minded men may differ as to what answer should be given to a charge of negligence, the matter is one for the jury. Handel v. Rudnick, Fla.1955, 78 So.2d 709. An appellate court, in considering the correctness of an order directing a verdict for a defendant at the close of plaintiff's evidence, must indulge every reasonable inference from the evidence which is favorable to the plaintiff. Teare v. Local Union No. 295, Fla.1957, 98 So.2d 79; and Arnold v. Stewart, Fla.App.1958, 101 So.2d 61.

In considering the two appeal points, we are restricted to the evidence of plaintiff's case. Bearing in mind this evidence as it may be viewed in the light of the trial court's direction of the verdict, we turn now to our consideration of the second appeal question, whether plaintiff established a case of prima facie negligence against the defendant.

The generation and distribution of electrical energy is highly dangerous to life and property. Electricity, the basic commodity of a power company, coursing invisibly through the quiet of uninsulated high tension wires, of itself sounds no warning as to its lethal nature. So it is, those who operate such a facility have the obligation to exercise care and vigilance in proportion to the peril involved.

Certain Florida cases, although factually different from the present case, directly involve the duty of care with which a power company is charged where danger exists for those working in the vicinity of its wires. The principles employed in these cases are applicable here, insofar as they consider the responsibility devolving upon a power company to provide protection from or warning of the danger, commensurate with the risk...