Blackwell's Adm'r v. Union Light, Heat & Power Co.
| Decision Date | 04 December 1953 |
| Citation | 265 S.W.2d 462 |
| Parties | BLACKWELL'S ADM'R v. UNION LIGHT, HEAT & POWER CO. |
| Court | United States State Supreme Court — District of Kentucky |
McGarry & Rich, Covington, for appellant.
Blakely, Moore & Blakely, Covington, for appellee.
This action was instituted by the administrator of William Blackwell to recover damages resulting from his alleged wrongful death. Pursuant to a verdict of the jury, a judgment was rendered for appellee, Union Light, Heat and Power Company. Appellant's principal complaint relates to the giving of certain instructions and the failure to give others which were offered and refused.
The decedent was employed as an assistant crane operator by the Penker Construction Company for a period of about seven weeks prior to his death. The construction company had a contract to build a pump house in connection with the flood wall project at Newport, Kentucky. Prior to the commencement of work, an engineer employed by the construction company visited the site where the pump house was to be erected and ascertained that appellee's high tension wires, carrying 13,500 volts, would interfere with the construction. He arranged a meeting with one of appellee's engineers to discuss a relocation of the wires. At this meeting, it was decided to relocate the wires so that they would traverse a vacant lot which the construction company had obtained permission to use for storage of its material and equipment. Appellee's engineer testified that he was informed by the construction company's engineer that the vacant lot would not be used in connection with the construction. We regard that fact as unimportant, however, since the lot was actually used for storage purposes for several weeks before the accident and appellee's agents either knew or should have known of that fact. As relocated, the wires passed within forty-five feet of the corner of the pump house and were about thirty-six feet above the ground.
The handling of the material and equipment kept on the storage lot was facilitated by the use of a crane with a fifty-five foot boom. The decedent was electrocuted while attempting to attach the cable of the crane to a wire bucket located directly beneath the high tension wires. The only person who witnessed the accident was the crane operator, who testified that he and the decedent had been warned by their foreman that the wires were 'hot;' that when he attempted to pick up the bucket he tried to keep the boom a safe distance from the wires, and at the time of the accident the tip of the boom was about eight or ten feet from the wires and about five or six feet above them. He also stated that on several occasions he and the decedent had, without incident, removed the bucket from the same spot. Testifying further, he related that as he slackened out the cable he looked up at the wires on at least two occasions. He further related that just as decedent was ready to attach the bucket 'bluish sparks started to fly along the cable,' and that as decedent started to fall down he 'automatically swung the boom to the left to break the contact away from him.' He stated that he did not think the cable ever actually touched the wire. It is admitted that the wires were not insulated and in that respect violated an 1896 ordinance of the City of Newport, requiring all conducting wires except those for electric railways to be covered with durable, weatherproof insulation of not less than two coatings.
There is no dispute between the parties as to the degree of care which is required on the part of those who maintain a high voltage electric line. The duty, as often declared by the courts of this and other States, is to use the utmost care and skill to assure the safety of persons who may reasonable be expected to come in contact with their wires. Green River Rural Electric Co-op. Corporation v. Blandford, 306 Ky. 125, 206 S.W.2d 475; Union Light, Heat & Power Company v. Young's Adm'r, 141 Ky. 805, 133 S.W. 991. Utmost care means the highest degree of care, and conversely, highest degree of care means the utmost care and skill. Louisville & N. R. Co. v. Kemp's Adm'r, 149 Ky. 344, 149 S.W. 835.
Instruction No. 1 which was given by the court informed the jury that it was the duty of appellee to use the highest degree of care to relocate and construct the high voltage wires at the location in question so as to reasonably assure the safety of persons in the vicinity, but Instruction No. 3 incorrectly defined the highest degree of care as 'the usual skill by experienced persons under the same or similar circumstances.' This was clearly prejudicial, since the instructions when read together required nothing more than ordinary care.
Other complaints are made concerning Instruction No. 1, but we do not consider it necessary to...
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