Colorado Utilities Corporation v. Casady

• Decision Date: 01 June 1931
• Docket Number: 12380.
• Citation: 300 P. 601,89 Colo. 156
• Parties: COLORADO UTILITIES CORPORATION v. CASADY.
• Court: Colorado Supreme Court

300 P. 601

89 Colo. 156

COLORADO UTILITIES CORPORATION v. CASADY.

No. 12380.

Supreme Court of Colorado

June 1, 1931

In Department.

Error to District Court, Routt County; Charles E. Herrick, Judge.

Action by Milo Edwin Casady, an infant, by Mildred A. Casady, his guardian ad litem, against the Colorado Utilities Corporation. Judgment for plaintiff, and defendant brings error.

Affirmed.

See also, 300 P. 606.

Grant, Ellis, Shafroth & Toll and Erl H. Ellis, all of Denver, for plaintiff in error.

J. F Meador, of Craig, and W. C. Reilly, of Oak Creek, for defendant in error.

BUTLER J.

Milo Edwin Casady, a minor, herein referred to as Milo, or the plaintiff, recovered judgment against the Coloado Utilities Corporation, called herein the defendant, in a personal injury action.

In November, 1926, the defendant constructed an electric transmission line along the side of the main highway running west from Steamboat Springs. At the place where the accident occurred, about four miles from Steamboat Springs the road passed through a cut. The south bank was very low. The north bank was about eight or ten feet high. The soil there was 'very soft and muddy,' due to spring weather conditions at the time. The poles supporting the wires at that point were placed on the north bank; two of them being close to the edge. The third, referred to as the angle pole, or the corner pole, was placed at an angle in the road, where the road turned about twenty degrees toward the south. It was several feet back from the edge of the cut, and had a guy wire, to which was attached an anchor (a buried metal disk), on its north side. On the day of the accident, three wires, carrying a current of about 14,000 volts, were hanging from pendants attached to the poles. Frost coming out of the ground and water running down the bank caused the soil to slough away, so that the top of the bank slid off some four feet to the north, removing practically all the dirt from around one of the poles, thereby putting a strain upon the guy wire and anchor attached to the angle pole. Owing to the moisture and the strain, the anchor pulled out of the soil, thereby causing one of the poles to fall down until the end of its cross-arm touched the ground practically in the center of the road. One of the wires was within about four inches of the surface of the road.

On April 10, 1927, between 1 and 2 o'clock in the afternoon, Milo, then nine years of age, and two other children, each about eleven years old, arrived at the cut in an automobile driven by one Hill, the grandfather of one of the children. Upon noticing the condition above described, Hill stopped some 200 feet from the fallen pole, and attempted to turn around. His machine became mired in the ditch, and he got out and 'started to dig it with a shovel.' While he was thus engaged, the children, without his knowing it, got out of the car on the opposite side and went close to the wires. Milo did not come in contact with the wire--he testified that he was a foot and a half away--but he was so close that the electric current 'jumped' from the wire to a toy pistol in the right hand of the boy, and passed through his body and into the ground through his feet. He was severely injured. The lower half, or more, of his right arm was destroyed and had to be amputated. He suffered other permanent injuries. His arms, feet, body, and face were badly burned. He was in a hospital for two months and a half, and in a doctor's care for more than ten months. Previous to the accident he was in good health. Since then, according to the testimony of his mother, he has been very nervous, and has been unable to concentrate his mind on his work at school.

1. On November 12, 1928, the case was set for trial as the third jury case. The next day the defendant applied for a short continuance to allow a witness to arrive from Cuba. The application was denied. On the 19th there was filed another motion for a continuance, which was denied. The trial commenced on the 20th.

The affidavit in support of the applications for a continuance contained a statement of the evidence that it was expected the absent witness would give, and the plaintiff's attorneys admitted that the witness, if present, would so testify, and that such evidence might be considered as actually given on the trial. Section 195 of the Code of Civil Procedure of 1921 provides that in such circumstances 'the trial shall not be postponed.' Assuming the soundness of the contention that, notwithstanding the language of the Code, the matter was discretionary with the trial court, an examination of the record does not satisfy us that the court's discretion was abused.

2. There was sufficient evidence to support the jury's finding that the defendant was negligent, and that its negligence was the proximate cause of the injuries sustained by Milo.

The witness Dismukes, an engineer of the highway department, resided at Steamboat Springs nineteen years. He testified that the soil at the place of the accident is very fine--a fine texture mixed with shale; that in places like that where it has slid it is almost impossible to tell how long that is going to keep on sliding; that, considering the condition of the soil and the pitch of the slope, he 'would not have put a pole on the north side there at all,' because he 'would have been afraid that the earth would have sloughed off there and the thing gone down.' He also said that in the spring of 1925 the bank slid in or sloughed; that they thereupon made it a one-to-one slope, and 'figured' that the slope would hold, but that in the spring of 1926 'it sloughed off, some work there, if I remember right.'

Hoklas, a civil engineer, who had been engaged as a location and construction engineer by the defendant for some parts of its line, testified, in part, as follows:

'Q. Now state to the jury what may reasonably be expected in the erection of poles at the edge of cuts of this character in a formation of that character with reference to the sloughing off and the pole falling? A. There is a very common possibility of such a condition on the edge of a cut. Any cut--other than solid rock--is liable to slough and slip in places of shale, and the danger in a power line, or any line for that matter, is too great to erect and keep it if there is a cut.

'Q. From your experience and observation in these matters, Mr. Hoklas, what have you to say as to whether or not it is possible to erect poles carrying wires of that character at the edge of a cut, with formation similar to this? A. It would not be good construction, would not be a proper system of erection.

'Q. Mr. Hoklas, when you were there after the accident did you observe the extent of the sloughing of that bank? A. Yes, sir.

'Q. Tell the jury about that? A. It was badly sloughed off and slid; I would judge that the top of the cut was slipping back some four feet, or such a matter, and that has sloughed off to the side and was into the edge of the highway at that time.'

He said that the anchor had been placed in the ground about two feet; that it was not large enough or deep enough; that it had been set during freezing weather, and for that reason could not have been tamped very tightly.

'Q. Did you make any examination from which you could reach any conclusion as to what was put in on top of this anchor? A. The soil.

'Q. You saw no other indication? A. No other indication about there.'

Leckenby, a witness for the defendant, testified that he had charge of the erection of the pole line; that the holes were five feet deep for thirty-foot poles; that the anchor at the corner pole was set five feet deep; that two and a half feet of rock were placed on top, and then dirt put in and tamped down; that that was in November, 1926; and that two inches of frost was the maximum on any morning. The defendant's witness Chambers testified that he located the line in November, 1926; that there was practically no frost; that in the spring of 1927 the ground there was more saturated than usual; that this tended to make the ground slide; and that 'there were other slides at this time.'

The question of the defendant's negligence in erecting and maintaining the poles was submitted to the jury under proper instructions, and the finding on that question was against the defendant. We cannot disturb that finding.

3. After alleging negligence in setting and maintaining the poles and wires upon the edge of the cut, placed at insufficient depth in the ground, and without braces and appliances buried sufficiently deep to support the poles, the complaint added the averment that the defendant knowingly permitted the poles and wires to remain in, upon, and obstructing the highway 'for more than twenty-four hours' prior to the accident. It is said that, as the evidence did not show that the poles and wires were actually lying in, upon, and obstructing the highway for twenty-four hours, but only for a shorter time, there was a variance. Counsel admit that it was possible for the plaintiff to amend the complaint to meet the proof, but say that no such amendment was made, and that therefore the court's statement in an instruction that the plaintiff claimed that the pole was down for 'several hours' prior to the accident submitted an issue not made by the pleadings. We cannot agree with that contention.

4. It seems to be the position of counsel for the defendant that in order to impose a duty upon the defendant to remedy the condition existing prior to the accident, it must have had notice that the poles and wires were actually lying upon the ground, and that the evidence does not show notice of such condition a sufficient length of time before the accident to charge the defendant with negligence...