Andrews v. Appalachian Elec. Power Co.
| Decision Date | 12 March 1951 |
| Docket Number | No. 3745,3745 |
| Citation | 63 S.E.2d 750,192 Va. 150 |
| Court | Virginia Supreme Court |
| Parties | SARAH A. ANDREWS, ADMINISTRATRIX OF THE ESTATE OF GLENWOOD DEWEY ANDREWS, DECEASED v. APPALACHIAN ELECTRIC POWER COMPANY, A CORPORATION. Record |
Roby K. Sutherland and Alton I. Crowell, for the plaintiff in error.
Gilmer, Wysor & Gilmer, for the defendant in error.
Sarah A. Andrews, administratrix of the estate of Glenwood Dewey Andrews, deceased, hereinafter called the plaintiff, instituted in the court below an action at law against the Appalachian Electric Power Company, hereinafter called the defendant, to recover damages for the alleged wrongful death of decedent who was instantly killed by coming in contact with a highly-charged electric wire which was owned and operated by the defendant, and had broken and fallen into the street in the town of Pulaski, Virginia.
The defendant filed a plea of the general issue and after the evidence had been fully adduced before a jury the lower court, on the motion of the defendant, struck the evidence of the plaintiff on the ground that it failed to show that the defendant was guilty of any negligence which was the proximate cause of decedent's death. A verdict and judgment for the defendant necessarily followed. The lower court failed to pass upon the further asserted defense that the decedent had been guilty of contributory negligence.
The case is before us on a writ of error granted the plaintiff, and the sole assignment of error is that the issues of the negligence of the defendant and the contributory negligence of the decedent should have been submitted to the jury.
The main facts are not in dispute. The defendant company owns, operates and maintains in the town of Pulaski an electric light and power distribution system. A part of the distribution system consists of six copper wires or conductors extending along the south side of and parallel to Commerce street, which runs generally in an east and west direction. These wires or conductors are strung upon and supported by the conventional crossarms attached to wooden poles. The poles are approximately thirty-five to forty feet in height and the crossarms are affixed at a point some three to four feet below the top of the poles. Three of the wires are strung along the northern side of the poles and three along the southern side and are attached to the crossarms by the usual insulators.
The two wires on the ends of the crossarms carry the energy or power used for lighting the town's streets. Each of the wires on either side of the poles, next to the street light wires, carries a current of approximately 2,400 volts. The wire nearest to the poles on the northern side is likewise energized, while that nearest to the poles on the opposite or southern side is not energized.
About seven o'clock p.m., on July 16, 1948, the neutral or unenergized wire, which runs along the southern side of the poles, and the highly-energized middle wire, which runs along the northern side of the poles, broke and fell to the street. The break occurred some eight to twelve feet east of a pole which stands in front of the house of Mrs. Kathleen Kimbrough and near two tall pine trees. Following the break the short ends of the two wires dangled and hung from the crossarm on this pole, but the longer segments fell into the street. The breaking of the wires was accompanied by a loud noise and flash of light which attracted the attention of persons in the vicinity.
Glenwood Dewey Andrews and his wife lived in a house on the south side of Commerce street, about 300 feet east of the point where the wires had broken. Shortly after the wires fell Andrews walked out of his yard and toward the point where the wires were lying in the street. He was joined by one or two neighbors and they discussed the dangerous character of the fallen wires. In fact, Andrews cautioned one of them not to touch the wires. Just about this time Homer Ryan, an electrician, but not employed by the defendant company, drove up in his car. Seeing the wires in the street and apprehensive that they might injure some passer-by, Ryan caught hold of the energized wire which was covered or protected by light insulation (referred to by the witnesses as 'weather-proofing'), and taped or insulated the end of the wire. Having done this, Ryan undertook to pull the wire out of the street and as he did so the insulation or weatherproofing, which he says 'was bad or old and rotten,' peeled off the wire, thus leaving his hand exposed to the energized metal. He was immediately knocked unconscious and fell to the ground.
Seeing Ryan's peril, Andrews, the decedent, who was standing across the street, remarked to one of his companions, 'let's jerk that wire loose from him,' and before the companion could reply Andrews dashed across the street, grabbed the wire with both hands, pulled it from Ryan's body, and was almost instantly killed.
When the bystanders were finally able to remove the wire from Andrews' hands and body they noted that the insulation again peeled off the wire.
After having introduced evidence of the ownership and control of the wires and their breaking, the plaintiff, relying upon the doctrine of res ipsa loquitur, rested. Agreeing that that principle applied, the court overruled the defendant's motion to strike out the plaintiff's evidence at that stage of the case.
The defendant then introduced evidence tending to show that the break in the wires was not occasioned by its negligence. Expert witnesses on its behalf testified that the transmission lines were constructed, maintained and inspected in accordance with the general custom and usage of similar systems in the industry. Such custom and usage, these witnesses said, did not require insulation or periodical routine inspection of the overhead transmission lines of the system.
Witnesses on behalf of the defendant further testified that the break in the wires was occasioned by a short circuit, due to a small radio antenna wire which had gotten across the transmission lines. The contact of this antenna wire with two of the energized wires caused a short circuit which fused or burned apart one of the energized wires and damaged others. A piece of the antenna wire was found hanging from one of the broken transmission wires near the point of the break. Other pieces, one with a glass insulator attached, were picked up at the point.
How the antenna wire had gotten across the transmission lines and just how long it had been there are not disclosed by the evidence. Witnesses for the defendant testified that the limbs on the pine trees located near the point of the break in the wires had been trimmed in the month of April preceding the accident, and that in connection with this operation they had inspected the wires at that point. They were positive that no foreign wire was at that time across or in contact with the transmission lines.
However, James Alley, a witness on behalf of the plaintiff, testified that he had seen a radio antenna wire with an attached glass insulator, similar to that found at the scene after the accident, dangling from the high-tension wires at or near the point of the break prior to the trimming of the pine trees in the preceding April. Upon cross-examination this witness, a relative of the widow of the decedent, refused to admit or deny that prior to the trial he had made statements inconsistent with his testimony as to when he had seen the antenna wire hanging from the transmission lines.
It is well settled in this jurisdiction and elsewhere that under the doctrine of res ipsa loquitur proof that an injury has resulted from contact with a highly-charged wire which is under the exclusive operation and control of the defendant and is out of its proper place, raises a prima facie presumption that the defendant was negligent in the performance of its duty and throws upon it the burden of overcoming such presumption. Appalachian Power Co. v. Hale, 133 Va. 416, 423, 424, 113 S.E. 711; Norfolk Ry., etc., Co. v. Spratley, 103 Va. 379, 382, 49 S.E. 502; 18 Am. Jur., Electricity, § 110, p. 504 ff; 29 C.J.S., Electricity, § 66-b, p. 624 ff.
In the recent case of Virginia Transit Co. v. Durham, 190 Va. 979, 987, 988, 59 S.E. (2d) 58, 62, we said:
In Norfolk Ry., etc., Co. v. Spratley, supra, which involved injuries sustained by a pedestrian who came in contact with an energized wire which had fallen into a city street, this court said: (103 Va., at page 381). See also, Appalachian Power Co. v. Hale, Supra (133 Va., at page 424).
Such high degree of care by those using public streets or highways for the transmission of electric power includes the duty of making reasonable and proper inspection of their wires and appliances. See 18 Am. Jur., Electricity, § 60, p. 454; Id., § 100, p. 496; 29 C.J.S., Electricity, § 47, p. 594. The duty of inspection is not confined to...
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