Conowingo Power Co. v. State of Maryland, 4767.

• Decision Date: 10 June 1941
• Docket Number: No. 4767.,4767.
• Citation: 120 F.2d 870
• Parties: CONOWINGO POWER CO. v. STATE OF MARYLAND, to Use of MARSHALL.
• Court: U.S. Court of Appeals — Fourth Circuit

120 F.2d 870 (1941)

CONOWINGO POWER CO. v. STATE OF MARYLAND, to Use of MARSHALL.

No. 4767.

Circuit Court of Appeals, Fourth Circuit.

June 10, 1941.

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Roszel C. Thomsen and Walter L. Clark, both of Baltimore, Md. (Edwin W. Lowe and Robert E. Coughlan, Jr., both of Baltimore, Md., on the brief), for appellant.

Leonard Weinberg and Everett L. Buckmaster, both of Baltimore, Md. (Weinberg & Green, and George H. Dowell, all of Baltimore, Md., on the brief), for appellee.

Before PARKER and SOPER, Circuit Judges, and MOORE, District Judge.

PARKER, Circuit Judge.

This is an appeal by defendant in a wrongful death case in which there was verdict and judgment for the plaintiff. Decedent was employed by the Bethlehem Steel Company, which was engaged in constructing a bridge over the Susquehanna River between Perryville and Havre de Grace, Maryland. On November 28, 1938, he was engaged with other employees of the steel company in moving some iron pipe by means of a steel cable suspended from a "gennywink" on the bridge, when the cable came in contact with high tension wires of the defendant, Conowingo Power Company, and he was electrocuted. Three questions are presented by the appeal: (1) Whether verdict should have been directed for the defendant; (2) whether there was error in the charge of the court; and (3) whether there was error in admitting the testimony of an expert with respect to methods which might have been followed by defendant to remove the danger of contact with its wires. We think that all of these questions must be answered in the negative.

The principal contention of defendant is that verdict should have been directed in its favor. This is based upon the contention that no breach of duty on the part of defendant was shown, that decedent was guilty of contributory negligence and assumed the risk of injury by the method employed in moving the pipe and that, at all events, the negligence of defendant was not the proximate cause of his death, which, it is said, resulted from his own negligence and that of his foreman as an intervening efficient cause. This requires an analysis of the facts.

The bridge under construction by the steel company crossed a power line of defendant which ran beside the Frenchtown road beneath the bridge. High tension power lines carrying 33,000 volts of electricity were strung on the top cross arm of a pole ten or fifteen feet beneath the bridge. Four feet beneath this cross arm was another and shorter one bearing wires carrying 4,000 volts and other wires carrying lower voltage; and the high tension wires on the upper cross arm extended farther from the pole than the wires on the lower. Early in October, defendant began cutting off the electricity from the 33,000 volt wires, from 7 o'clock in the morning until five in the afternoon, for the protection of the workers on the bridge; and the workers were notified that this was being done and that these wires were dead. The electricity was not cut off of the wires on the lower cross arm and the workers were warned not to come in contact with them. Early in November, defendant without notice to the steel company or the workers on the bridge, ceased cutting off the current on the 33,000 volt wires; and these wires were carrying this deadly current of electricity at the time of the fatal accident, without the knowledge of the men working in their vicinity.

Sections of drainage pipe to be used under the bridge over the Frenchtown road were delivered under the bridge on the east side of the road. These sections were 20 feet long and weighed approximately 1,000 pounds each. Before they could be hoisted into position, it was necessary that they be moved from the east to the west side of the road. This was done by placing a "gennywink" on the bridge, suspending a steel cable therefrom, raising a section of pipe from the ground by means of the cable and then swinging it into position by hand. Decedent's duty in this operation was to stand on the ground and guide the pipe into position. At the time that he received the fatal injury, he was handling the last section of pipe. The "gennywink" had been placed on the bridge in such position that the steel cable projected downward approximately three and one-half to five feet distant from the 33,000 volt wires on the top cross arm. The end of the cable was fastened about the pipe, one end of which was placed against the pole of defendant. Decedent then attempted to push the pipe into position and was having difficulty in doing so, when his foreman came to his assistance and both were killed as a result of the cable touching a high tension wire, or coming so near to it that the electricity arced over the intervening distance.

The steel company had been hoisting parts of the bridge near the high tension wires to the knowledge of the "trouble" man of the defendant for a considerable period of time; and, in the course of one operation, contact had been made with the 4,000 volt wires with no greater damage than the blowing of a fuse. After the riveters had finished working directly above the wires, the "trouble" man of defendant had suggested to the steel company's superintendent that there was no further occasion for de-energizing the wires but was requested to continue doing this so long as men were working near them. When the riveters moved to another section of the bridge, however, he ceased de-energizing the wires without notice to the steel company or the workers and there was nothing to apprise them of the changed condition.

Taking these facts in the light most favorable to plaintiff, as we must on the motion for directed verdict, we cannot say that they fail to show breach of duty on the part of defendant. The duty rested upon defendant to use the very highest degree of care practicable to avoid injury to everyone who might be lawfully in proximity to its wires, and liable to come, accidentally or otherwise, in contact with them. Brown v. Edison Electric Illuminating Co., 90 Md. 400, 45 A. 182, 45 L.R.A. 745, 78 Am.St.Rep. 442; Smith v. Appalachian Electric Power Co., 4 Cir., 74 F. 2d 647; Ashby v. Philadelphia Electric Co., 328 Pa. 474, 195 A. 887; notes 14 A.L.R. 1023, 56 A.L.R. 1021. And the rule is not different because of the fact that the wires were in place before the construction of the bridge was begun. This is not the case of an extraordinary, special or temporary use of premises, such as was dealt with in Buell v. Utica Gas & Elec. Co., 259 N.Y. 443, 182 N.E. 77, but of extensive operations rightfully conducted in proximity to the wires. Directly in point is Smith v. Appalachian Electric Power Co., supra, where we dealt specifically with the doctrine applicable in such cases and exhaustively reviewed the authorities. Speaking through Judge Soper, this Court said in that case 74 F.2d 651:

"We are in accord with the rule applied in these decisions, and are thus of opinion that an electric power company, maintaining its wires on private property, is bound to exercise due care when other occupants, in normal and rightful use of the premises, erect structures in proximity to its lines, in the event that persons rightfully in, on, or about such structures for work, business, or pleasure, are thereby placed in a situation of danger, and the company knows, or with reasonable diligence ought to know, of the danger. It may be, as decided in Buell v. Utica Gas & Elec. Co., 259 N.Y. 443, 182 N.E. 77, upon which defendant strongly relies, that the company's duties may not be extended so far as to require it to take precautions necessitated by an extraordinary, special, and temporary use of the premises; but we have no occasion to pass upon that question at this time. We are not concerned in the pending case with a use of premises so brief and extraordinary that an unreasonable burden would be placed upon the company if it were required to safeguard persons engaged in such an undertaking. The erection and maintenance of the Ferris wheel on its allotted space in the fairground cannot be viewed...