Bunten v. Eastern Minnesota Power Co.

• Citation: 178 Minn. 604,228 N.W. 332
• Decision Date: 13 December 1929
• Docket Number: No. 27414.,27414.
• Parties: BUNTEN v. EASTERN MINNESOTA POWER CO.
• Court: Supreme Court of Minnesota (US)

228 N.W. 332

178 Minn. 604

BUNTEN v. EASTERN MINNESOTA POWER CO.

No. 27414.

Supreme Court of Minnesota.

December 13, 1929.

Reargument Denied January 17, 1930.

Appeal from District Court, Pine County; Alfred P. Stolberg, Judge.

Action by Paul Bunten against Eastern Minnesota Power Company. From an order denying their alternative motion for judgment non obstante or for a new trial, defendant appeals. Reversed and rendered.

Baldwin, Baldwin, Holmes & Mayall, of Duluth, for appellant.

Samuel A. Anderson, of St. Paul, John D. Greathouse, of Minneapolis, and S. B. Wennerberg, of Center City, for respondent.

TAYLOR, C.

Trunk highway No. 1 and the Northern Pacific railroad pass in a north and south direction through Rock Creek, a village in Pine county having a population of about 200. A spur track on which cars are loaded and unloaded extends about 1,000 feet in a southwesterly direction from the main track of the railroad. Defendant's power line, constructed in 1909 and supported by wooden poles, passes over this spur track. The power line consists of three wires placed in a triangular position, one being attached to the top of the poles and one to each end of short cross-arms supported by the poles. The distance between these wires is given as about 2½ feet. They were not insulated and carried 13,200 volts of electricity.

In 1927, the Western Asphalt Paving Corporation paved the section of the trunk highway passing through Rock Creek, and in doing the work used a large, heavy concrete mixer which moved by its own power on caterpillar trucks. At the front end of this mixer a stationary steel boom nearly square and about 12 inches wide extended at an angle of about 45 degrees to a height of 20 feet 8¼ inches above the surface on which the mixer rested. Wire cables used in operating the machine passed over pulleys at the upper end of this boom. The paving company, having completed its work, loaded the mixer on a flat car in the forenoon of July 5, 1927, for shipment over the railroad. It was loaded before the boom was removed. On account of bridges and other obstructions railroads require that nothing received for shipment shall project to a greater height than about 12 feet above the floor of the car. To prepare the mixer for shipment it was necessary to remove this stationary boom. The mixer was placed on the flat car while the car stood on the spur track at some distance from the point where defendant's power line passed over it. Immediately thereafter the paving company moved the car to a point which brought the top of the boom directly beneath the power line and between and a few inches below the two lower wires.

Plaintiff was an employé of the paving company and worked on or about the mixer. In the afternoon of July 5th, plaintiff and other employés started to remove the boom. Plaintiff detached one end of the wire cables and pulled them over the pulleys to the floor of the car. The end of the last cable jammed in the pulley at the top of the boom. Plaintiff climbed up the boom for the purpose of releasing it, and grasped the cable and pulled. As he did so he received an electric shock which burned him badly and caused severe permanent injuries. He could have proceeded against his employer for compensation under the Workmen's Compensation Law (Laws 1921, c. 82 as amended); but, if his injuries resulted proximately from the negligence of defendant, he had the right to proceed against defendant. He brought this action against defendant and recovered a verdict for $23,000. Defendant made an alternative motion for judgment non obstante or for a new trial, and appealed from an order denying it.

Plaintiff bases his action on the claim that defendant was negligent in not placing its wires at a greater height, and in not insulating that portion of them which passed over the spur track.

The material facts are not in dispute. The only buildings in the vicinity of the spur track were a creamery and two warehouses. The power line had been maintained in substantially the same position since 1909. The lower wires were 25½ feet above the top of the rail according to measurements by both parties. The top of the boom as the mixer stood on the flat car was 24 feet 8¼ inches above the top of the rail. It at no time came in contact with the wires, although moved along the track under them.

In view of the undisputed facts, estimates of the extent to which the wires sagged, made at the trial a year later and based wholly upon what the witnesses remembered as to the appearance of the wires at about the time of the accident, were without probative force. The wires were high enough not to endanger trainmen on the top of freight cars. There is nothing to indicate that anything of a sufficient height to come in contact with them had been moved over the spur track or the public highways during the 18 years they had been maintained. So far as appears, plaintiff is the only person who ever placed himself in a position to be injured by them. Defendant presented testimony to the effect that such transmission lines in this state are practically all of uninsulated wires, and that engineers almost unanimously favor the use of bare wires.

Defendant contends that the wires were at a sufficient height to avoid injury to any person doing anything which defendant could reasonably be expected to anticipate as likely to be done in the vicinity of the wires; and that unnecessarily placing the end of a steel boom within a few inches of these wires and proceeding to work upon that end of it was an act so unusual and so unlikely to happen that defendant cannot be held guilty of negligence in failing to foresee and guard against such an occurrence.

Those engaged in transmitting such a dangerous force as electricity, which gives no warning of its presence and is not apparent to the senses, are required to exercise a degree of care in constructing and maintaining the wires over which it is transmitted commensurate with the danger to be apprehended from contact with such wires or the escape of electricity therefrom; but they are not insurers against accidents or injuries. Gilbert v. Duluth, etc., Co., 93 Minn. 99, 100 N. W. 653, 106 Am. St. Rep. 430; Musolf v. Duluth Edison Electric Co., 108 Minn. 369, 122 N. W. 499, 24 L. R. A. (N. S.) 451; Hoppe v. City of Winona, 113 Minn. 252, 129 N. W. 577, 33 L. R. A. (N. S.) 449, Ann. Cas. 1912A, 247; Drimel v. Union Power Co. 139 Minn. 122, 165 N. W. 1058; Davidson v. Otter Tail Power Co., 150 Minn. 446, 185 N. W. 644; Pattock v. St. Cloud Public Service Co., 152 Minn. 69, 187 N. W. 969.

The cases are numerous in which the courts have been called upon to determine whether a company maintaining a high tension wire ought to have anticipated and guarded against a particular danger. It has been held negligent to string unprotected or insufficiently protected high tension wires over the top or along the side of a bridge so near the framework that workmen repairing or painting the framework might come in contact with them, as it ought to have been anticipated that workmen might go upon the framework for such purposes. Hoppe v. City of Winona, 113 Minn. 252, 129 N. W. 577, 33 L. R. A. (N. S.) 449, Ann. Cas. 1912A, 247; Austin v. Public Service Co., 299 Ill. 112, 132 N. E. 458, 17 A. L. R. 795. It has also been held negligent to permit such wires to pass through the branches of trees, especially where the trees are near streets or near grounds upon which children play, as it ought to have been anticipated that the trees might be climbed. Dwight Mfg. Co. v. Word, 200 Ala. 221, 75 So. 979; Temple v. McComb City Electric, etc., Co., 89 Miss. 1, 42 So. 874, 11 L. R. A. (N. S.) 449, 119 Am. St. Rep. 698, 10 Ann. Cas. 924; McCrea v. Beverly Gas & Electric Co., 216 Mass. 495, 104 N. E. 365; Philbin v. Marlborough Electric Co., 218 Mass. 394, 105 N. E. 893. It has also been held negligent to fail to maintain such wires at a sufficient height above a highway to permit the unobstructed passage of structures of a height frequently moved along the highway. Shank v. Great Shoshone, etc., Co. (C. C. A.) 205 F. 833; Greenwood v. Eastern Oregon Power Co., 67 Or. 433, 136 P. 336; Logan v. Empire District Electric Co., 99 Kan. 381, 161 P. 659, L. R. A. 1917E, 258. But where an electric company maintains its wires at a height at which they would not come in dangerous proximity to such persons or things as it reasonably ought to anticipate might rightfully come under or near them, it is not chargeable with negligence because some one doing an act which it had no reason to expect suffers an injury which might not have been sustained if the wires had been higher. Fairbairn v. American River Electric Co., 170 Cal. 115, 148 P. 788; Mayhew v. Yakima Power Co., 72 Wash. 431, 130 P. 485; Mirnek v. West Penn Power Co., 279 Pa. 188, 123 A. 769; Kentucky Utilities Co. v. Searcy, 167 Ky. 840, 181 S. W. 662; Brush Electric Light & Power Co. v. Lefevre, 93 Tex. 604, 57 S. W. 640, 49 L. R. A. 771, 77 Am. St. Rep. 898; Braun v. Buffalo General Electric Co., 200 N. Y. 484, 94 N. E. 206, 34 L. R. A. (N. S.) 1089, 140 Am. St. Rep. 645, 21 Ann. Cas. 370.

It is the duty of an electric company which maintains high voltage wires at places where people have the right to be, and are likely to come in contact with them, to guard against danger from the wires by effectively insulating them or by providing other sufficient safeguards. Austin v. Public Service Co., 299 Ill. 112, 132 N. E. 458, 17 A. L. R. 795; Yeager v. Edison Electric Co., 242 Pa. 101, 88 A. 872; Rowe v. Taylorville Electric Co., 213 Ill. 318, 72 N. E. 711; Knowlton v. Des Moines, etc., Co., 117 Iowa, 451, 90 N....