Chase v. Washington Water Power Company, a Corp., 6816

• Citation: 111 P.2d 872,62 Idaho 298
• Decision Date: 24 March 1941
• Docket Number: 6816
• Parties: IRVING MAXON CHASE, as administrator with the Will annexed of the Estate of Ella G. Libby, deceased, Plaintiff, and PHOENIX FIRE INSURANCE COMPANY, a corporation, Intervenor, Respondents, v. THE WASHINGTON WATER POWER COMPANY, a corporation, Appellant
• Court: United States State Supreme Court of Idaho

111 P.2d 872

62 Idaho 298

IRVING MAXON CHASE, as administrator with the Will annexed of the Estate of Ella G. Libby, deceased, Plaintiff, and PHOENIX FIRE INSURANCE COMPANY, a corporation, Intervenor, Respondents, v. THE WASHINGTON WATER POWER COMPANY, a corporation, Appellant

No. 6816

Supreme Court of Idaho

March 24, 1941

ELECTRICITY-TRANSMISSION-DUE CARE-NEGLIGENCE-CUSTOM-PROXIMATE CAUSE-QUESTIONS FOR JURY.

1. The highest degree of care must be exercised by those engaged in the generation and distribution of electricity.

2. Where action against electric company was based on theory that chicken hawks engaged in an aerial battle in course of which they had interlocked their talons, that while so attached to each other one touched high-tension transmission line and the other touched guy wire, that birds formed connecting link through which electricity escaped to guy wire and that guy wire touched barbed wire fence which transmitted electricity to barn which was destroyed by fire, the electric company which was guilty of negligence in permitting the uninsulated guy wire to remain in contact with the fence wire could not be absolved from liability by mere fact that it had spaced the transmission line and guy wire 28 inches apart in accordance with the accepted standard.

3. General practice in maintaining and operating electric power line will not excuse negligent act unless such practice is consistent with due care.

4. Where action against electric company was based on theory that chicken hawks engaged in an aerial battle in course of which they had interlocked their talons, that while so attached to each other one touched high-tension transmission line and the other touched guy wire, that birds formed connecting link through which electricity escaped to guy wire and that guy wire touched barbed wire fence which transmitted electricity to a barn which was destroyed by fire, whether electric company was guilty of negligence in permitting the uninsulated guy wire to remain in contact with the fence wire and whether negligence, if any, was "proximate cause" of fire was for jury, notwithstanding that insulation of guy wire or the maintaining of a sufficient space between guy wire and wire fence might have been expensive.

5. Where, conditions or location considered, it is dangerous to have electric wires uninsulated, failure to insulate them is negligence.

APPEAL from the District Court of the Eighth Judicial District for Kootenai County. Hon. Bert A. Reed, Judge.

Action for damages for loss by fire alleged to have been caused by negligence of defendant-appellant. Judgment for plaintiff and intervenor. Affirmed.

Judgment affirmed. Costs to respondents.

W. F McNaughton, for Appellant.

It is not sufficient to show that an accident occurred; there must be some evidence of negligence. (Thomas v. Pocatello Power Company, 7 Idaho 435; Charles Le Deau v Northern P. Ry Co., 19 Idaho 711; Oklahoma Gas &amp Electric Co. v. Wilson, 45 P.2d 750.)

Where there is a third agency which is the primary cause of an accident, a defendant will not be held liable unless said intervening cause was one reasonably to be expected and negligently not guarded against. (Sweatman v. Los Angeles G. & E. Co., 281 P. 677; Kosson v. West Penn Power Company, 141 A. 734; Salt River Valley Water Users' Co. v. Cornum, 63 P.2d 639; City of Okmulgee v. Hemphill, 83 P.2d 189; Antler v. Cox, 27 Idaho 517.)

Whitla & Knudson, for Respondent Chase.

Electrical companies are held to the highest degree of care practicable to avoid injury to persons or property. (Ellis v. Ashton & St. Anthony P. Co., 41 Idaho 106; Younie v. Blackfoot Light & Power Co., 15 Ida, 56; Gagnon v. St. Maries Light & Power Co., 26 Idaho 87.)

Where the injury received by the plaintiff was the result of negligence on the part of the defendant, which negligence was the proximate cause, or one of the proximate causes, of the injury, the plaintiff may recover. (Hooker v. Schuler, 45 Idaho 83; Wheeler v. Oregon R. R. Co., 16 Idaho 375; Miller v. Northern Pacific Ry. Co., 24 Idaho 567.)

Where on the question of proximate cause men's minds may honestly differ it should always be submitted to a jury. ( Tendoy v. West, 51 Idaho 679.)

Edward H. Berg and Ray A. Redfield, for Intervenor.

KOELSCH, D. J. Givens, J., MORGAN, J., concurring. Ailshie, J., did not participate and Koelsch, D. J., sat in his stead. BUDGE, C. J., HOLDEN, J. (Dissenting).

OPINION

KOELSCH, D. J.

--The plaintiff, Irving Maxon Chase, as administrator, hereafter called respondent, is the owner of the northeast quarter of Section Thirty-three, Township Fifty-one North, Range Five West, in Kootenai County, this state. His neighbor, Peter L. Beck, owns the southeast quarter of the same section. These lands are enclosed by three strand, barbed wire fences, and a similar fence divides the two quarter sections, this division fence being attached to a common post at the quarter section corner, in the north and south fence along the eastern boundary of this section. The latter fence also marks the western boundary of the public highway running north and south past these two quarter sections. Also, along this western boundary of the highway, and along the last referred to fence, the appellant The Washington Water Power Company has contracted and maintains, a power line for the carrying and distribution of electricity to its patrons. This power line consists of poles, approximately 35 feet in height, with two cross-arms near the top of each pole, a short one probably two feet from such top, and a longer one about two feet below that. The short arm has one insulator to which is attached a high-tension wire carrying about 60,000 volts of electricity, while the longer cross-arm has two insulators, to which are attached similar transmission wires. The particular pole involved in this action, situated about 150 or 200 feet south of the common fence corner post, has attached to its top a guy wire running down to and anchored in the ground approximately fifteen feet north from the base of the pole. This guy wire is uninsulated, and has attached to it a flash board reaching from the ground up probably five or six feet. Both fence and power line had been erected a number of years prior to the event which is the subject of this lawsuit. And the evidence shows that at the time of the event referred to and for probably two years before that, the barbed wire fence near this particular pole leaned so far out of its line that its three strands of wire touched and rubbed against the uninsulated guy wire.

On August 25, 1939, there was a sudden flash or "explosion" of electricity, at or near the top of the pole hereinbefore described, and almost instantaneously numerous fires were observed in the dry grass, all along the barbed wire fences, and also at the respondent's barn, to which the division fence was attached. That the fires were started by a current of electricity along the barbed wire fences, is beyond doubt. The problem is, How was the electricity conducted or communicated to the wires in the fences? In the investigation made within an hour or two to determine this question, two dead chicken hawks were discovered at or near the foot of the power pole heretofore described. These hawks had their talons interlocked, and both were badly singed by fire. At once the theory was advanced, and apparently accepted by all parties to this action, that these chicken hawks, while engaged in an aerial battle in the course of which they had interlocked their talons, and while so attached to each other, had fallen or flown so that one of them touched the high-tension transmission line at the same instant that the other touched the guy wire, which wires were spaced twenty-eight inches apart, the bodies of these birds thus forming a connecting link through which the current of electricity escaped from the transmission line to the guy wire and along the latter to the barbed wire fence, which, as stated, leaned against and articulated with the uninsulated guy wire.

The barn, and certain personal property, having been totally destroyed, and some other buildings injured by the fire, the respondent brought this action to recover the damages by him sustained. The jury rendered a verdict in his favor for the sum of $ 1,000.00, and in favor of the intervenor, which had paid respondent under an insurance policy on some of the buildings injured, for the sum of $ 529.00, and from a judgment entered in pursuance of such verdict, the defendant Power Co. has appealed to this Court.

The ground upon which the appellant bases its request for a reversal of the judgment is that the evidence fails to show that the injuries complained of were due to any negligence on its part.

It is first pointed out that there was no negligence in the construction of the power line at the pole from whence the electricity escaped; that the space between the transmission wire and the guy wire was 28 inches, and that that spacing was in accordance with standard construction and deemed safe by public utility commissions and generally by those familiar with, or engaged in the construction or maintenance of electric power lines.

It is next contended that standard construction does not require that guy wires be insulated, and that it is not practicable to effectively insulate guy wires in power lines carrying so high a voltage as was transmitted over these lines; and, it is urged that the standard or generally accepted precaution against the escape of electricity from the transmission wire to the guy wire is the spacing of such wires of not less than 27 inches apart.

Appellant next points out that while it must be admitted that the electricity which wrought the destruction of respond...