Brunell v. Mountain States Power Co.

• Decision Date: 13 January 1936
• Docket Number: No. 7626.,7626.
• Citation: 81 F.2d 305
• Parties: BRUNELL v. MOUNTAIN STATES POWER CO.
• Court: U.S. Court of Appeals — Ninth Circuit

81 F.2d 305 (1936)

BRUNELL v. MOUNTAIN STATES POWER CO.

No. 7626.

Circuit Court of Appeals, Ninth Circuit.

January 13, 1936.

J. W. McInturff, of Marshfield, Or., and McCamant, Thompson & King, of Portland, Or., for appellant.

Wilbur, Beckett, Howell & Oppenheimer, of Portland, Or., and Francis E. Marsh, of McMinnville, Or., for appellee.

Upon Appeal from the District Court of the United States for the District of Oregon.

Before WILBUR, DENMAN, and HANEY, Circuit Judges.

WILBUR, Circuit Judge.

This is an action for damages for personal injuries received by Fred W. Brunell, a minor aged 20 years, by an electric discharge from a power wire owned and operated by the Mountain States Power Company and accidentally touched by the minor. The lower court instructed the jury to return a verdict for the defendant. The alleged negligence solely relied upon on this appeal is the failure of the company to use automatic circuit breakers in lieu of fuses on the power line in question. The defendant denied that this was negligence, denied that such failure was a proximate cause of the accident, and claims that the evidence establishes negligence of the minor as a matter of law.

The power line in question extended from the power house of the appellee in North Bend, Or., to the Hauser Construction Quarries. About 4:30 p. m. Sunday, August 6, 1933, a Ford automobile, occupied by two boys, crashed into the pole supporting the appellee's power line and broke the pole so that the pole and its power lines sagged over the highway. Two of the wires came in contact, causing a short circuit which burned out the fuses on these two wires between the pole and the generating plant. The third wire was not short-circuited either to the other wires or to the ground, and it still carried its electric current, or, in common parlance, it remained a "hot" or "live" wire. This current passed through transformers which were located along the line between the point where the fuses blew out and the end of the line, and with which all three wires were connected, thus recharging the two disconnected wires from the current in the third wire so that each wire was dangerous. It is not shown which of the wires was touched by the injured minor. A fuse would only operate upon the line carrying an overload of electricity caused by a short circuit. An automatic circuit breaker could be so insulated that the overload on the two crossed wires would cause the opening of a switch on all three lines thus disconnecting all three from the power house.

Considerable testimony was directed to the question as to whether or not such an accident due to the severing of a power pole by an automobile going out of control on the highways was reasonably to be expected and hence guarded against, in the exercise of that high degree of care necessary in dealing with so deadly an agency as 11,500-volt electric current. The question, however, is somewhat broader than the duty to anticipate that careless or reckless drivers would leave or be thrown from the highway against a power pole thus severing it. It was the duty of the defendant to exercise a high degree of care to protect the public (Gentzkow v. Portland Ry. Co., 54 Or. 114, 102 P. 614, 135 Am.St.Rep. 821; Saylor v. Enterprise Elec. Co., 110 Or. 231, 222 P. 304, 223 P. 725) and, if it were reasonably to be anticipated that such lines might fall from any cause, to use that high degree of care to protect the public from coming into contact with such fallen wires. Failure so to do would be negligence.

We therefore address ourselves to the alleged negligence with a view of ascertaining whether or not there was substantial evidence of negligence to go to the jury. Because of the intervention of the third party there can be no inference of negligence on the part of the power company under the res ipsa loquitur doctrine. The evidence tends to show that if all three wires had contacted, all three fuses would have blown out and the accident could not have happened. If an automatic switch had been installed between the power house and the place of accident, designed to disconnect all wires upon a short circuit of any of them and if it had worked as designed, the accident could not have happened. Plaintiff produced evidence that there was an automatic circuit breaker on the market; that such a device if installed, and if it operated, would have disconnected all the wires. William Meyers, an electrician, testified for plaintiff that if automatic pole circuit breakers such as were on the market had been installed a short circuit which would blow a fuse would operate to disconnect all three wires, and that it would be practical to install such a switch in place of the fuses which were installed. J. W. Asplund testified for the plaintiff and also for the defendant. He testified for the plaintiff as follows: "Under the conditions obtaining at the time of the accident it would be hard to say whether or not oil circuit-breakers would open due to a short circuit on the 2300 volt line. If I were to speak from experience I could answer. Theoretically it is supposed to but practically it does not. They may open but nine times out of ten they won't open."

He also testified for the defendant as follows:

"Top-pole circuit-breaker switches are not in common use on power lines similar to that running up Coos River. Fuses are in common use. * * * If an automatic switch were in operation instead of the fuses and there should be a short on the line, supposedly the line would clear but, as witness has previously testified, he cannot be positive that the line would clear. If the switch works the line does clear. If the switch does what it is designed to do it is supposed to clear the circuit. If the switch works it clears the circuit and if the circuit is cleared no one would be injured by coming in contact with a wire down on the road. If...