Caddo Elec. Co-op. v. Bollinger

• Decision Date: 07 June 1955
• Docket Number: No. 36396,36396
• Citation: 55 A.L.R.2d 172,285 P.2d 200
• Parties: , 1955 OK 170 CADDO ELECTRIC COOPERATIVE, a Corporation, Plaintiff in Error, v. Jerald BOLLINGER, a minor, by and through his father and next friend, C. E. Bollinger, Defendant in Error.
• Court: Oklahoma Supreme Court

Page 200

285 P.2d 200

55 A.L.R.2d 172, 1955 OK 170

CADDO ELECTRIC COOPERATIVE, a Corporation, Plaintiff in Error, v. Jerald BOLLINGER, a minor, by and through his father and next friend, C. E. Bollinger, Defendant in Error.

No. 36396.

Supreme Court of Oklahoma.

June 7, 1955.

Syllabus by the Court

1. Where reasonable men may differ in their conclusions from the evidence as to proximate cause and the existence of negligence, they are questions for the jury to determine.

2. Where contributory negligence is made an issue, and there is any competent evidence introduced, such issue always must be submitted to the jury and the finding of the jury thereon is conclusive.

Appeal from the District Court of Canadian County; Wm. L. Fogg, Judge.

Suit for damages for personal injuries. Judgment for plaintiff and defendant appeals. Affirmed.

Pierce, Mock & Duncan, Oklahoma City, for plaintiff in error.

Porta & Weaver, El Reno, for defendant in error.

CORN, Justice.

An extended statement of the pleadings and evidence is unnecessary for consideration of the question presented by this appeal. About a month prior to the accident hereinafter described defendant had constructed an electric transmission line along a county road near plaintiff's home in Canadian county. As a point where this line made a 30 degree turn the pole was supported by two guy wires anchored in the right of way of the road. These wires had no guards and were not easily visible. Plaintiff, in company with four youthful companions, was horseback riding along the road. His horse ran into the exposed guy wires and fell backward upon plaintiff causing severe and permanent injuries. Plaintiff, a minor who sued by and through his father as next friend, brought this action to recover damages for the injuries so received. No issue is presented on appeal relative to the nature and extent thereof.

The petition charged defendant with failure to use proper and customary care in building the line, in that ordinary care required erection of an anchoring pole on the opposite side of the road, rather than by anchoring the pole by guy wires placed in the right of way so as to be exposed to traffic. Plaintiff further charged defendant with failure to comply with provisions of 18 O.S.1951 § 437.2, which provides that all electrical construction and maintenance shall comply with requirements of the National Electrical Safety Code, and particularly paragraph E, section 282, which states:

'Guy Guards: The ground end of all guy wires attached to ground anchors exposed to traffic shall be provided with a substantial and conspicuous wood or metal guard not less than 8 feet long.

'Recommendation: It is recommended that in exposed or poorly lighted locations, such guards be painted white or some other conspicuous color.'

Defendant answered by general denial, and specifically denied improper installation of the pole and guy wires. By amendment defendant presented the defenses of contributory negligence and unavoidable casualty.

The evidence showed this was an unimproved country road running north and south, the left (west) boundary being a wooded ditch. The road bed was flat, being graded only occasionally to smooth the ruts, and there was little difference in elevation over the right of way. At the time of the accident the smoothed portion was only of sufficient width to accommodate one lane of vehicular traffic. The area between the east side of the smoothed portion and the right of way line was covered by grass (knee high) and weeds. There was evidence showing the road was traveled regularly for the purposes, and by the usual modes of travel peculiar to any unimproved road in a rural area. And, there was testimony showing that livestock could be, and often were, herded along the road by automobile, the level condition permitting vehicles to be driven over the entire surface of the right of way. Livestock moving along the road generally traveled along the east side because the grassed-over condition made traveling softer and easier.

The day of the accident plaintiff and his companions were riding their horses south down the road. Plaintiff, riding without a saddle, fell behind his companions, who stopped in the vicinity of the guy wires to enable him to catch up. Plaintiff put his horse into a lope, and turned off the smoothed, packed part of the road onto the grass. Just before reaching his companions one of them shouted a warning, but this came too late. The horse struck the guy wires and fell backward upon him, causing serious injuries. Plaintiff knew the guy wires were anchored in the road, but there was nothing to attract his attention, or enable him to see and avoid running into the wires.

A retired employe of an electric power company with experience in construction of electric lines was a witness for plaintiff. He testified that in building a turn such as defendant constructed in this line the proper and customary manner would be to put a pole on the opposite side of the road and anchor the line to such pole by an overhead guy wire. He further testified custom and usage in the industry required use of guards on guy wires exposed to traffic.

One Bryan, defendant's manager when the line in question was constructed, was defendant's principal witness. He testified defendant's installations were in accord with requirements of the Safety Code, quoted heretofore; he was familiar with installations of other public utilities and had occasion to observe their lines, and there were many lines upon which guy guards were not installed. Defendant also introduced in evidence photographic exhibits of other installations in the general area which had no guy wire guards.

The jury returned a verdict for plaintiff ($8,500.) upon which the judgment appealed from was rendered.

Defendant argues two propositions as grounds for reversal of this judgment, both of which are based upon the asserted insufficiency of the evidence to present a question of fact for the jury's determination. Under the first proposition defendant urges that, although the guy wires were anchored in the right of way, there was no evidence of general and regular use of the road, and thus the evidence was insufficient to establish that these wires were exposed to traffic. To support this argument defendant relies upon Roberts v. Wisconsin Tel. Co., 77 Wis. 589, 46 N.W. 800; Phelps v. Wisconsin Tel. Co., 244 Wis. 57, 11 N.W.2d 667; Shawnee Gas & Electric Co. v. Griffith, 96 Okl. 261, 222 P. 235, and Jafek v. Public Service Co., 183 Okl. 32, 79 P.2d 813.

We do not believe the law as announced in the cited cases can be considered as controlling herein, in view of the varied factual situations therein revealed. In the Roberts case, supra, the alleged obstruction was a clearly visible telephone pole, and the plaintiff's injury resulted from being thrown against such pole while alighting from his buggy, by reason of his team becoming frightened by an independent agency.

In the Phelps case, supra, plaintiff's decedent was crushed between a telephone guy wire and the seat of a grader when he backed into the guy wire, upon which there was no guard, at a point where the street...