Cronk v. Iowa Power & Light Co.

• Decision Date: 14 December 1965
• Docket Number: No. 51567,51567
• Parties: Ida Mae CRONK, Administratrix of the Estate of Cyril Cronk, Deceased, Appellee, v. IOWA POWER AND LIGHT COMPANY, Appellant.
• Court: Iowa Supreme Court

Page 843

138 N.W.2d 843

258 Iowa 603

Ida Mae CRONK, Administratrix of the Estate of Cyril Cronk, Deceased, Appellee, v. IOWA POWER AND LIGHT COMPANY, Appellant.

No. 51567.

Supreme Court of Iowa.

Dec. 14, 1965.

Rehearing Denied Feb. 8, 1966.

Duncan, Jones, Riley & Davis, and Robert G. Riley, Des Moines, for appellant.

Brunk, Janss, Dreher, Adams & Wilson, Robert E. Dreher and Harold Van Voorhis, Des Moines, for appellee.

MASON, Justice.

This is a negligence action by the estate of a deceased Des Moines waterworks employee claiming damages by reason of his untimely death.

Trial was to the court without a jury. The court found defendant negligent under the circumstances, decedent free from negligence, defendant's negligence was the proximate cause of decedent's death and damages. Defendant's appeal from adverse judgment challenges these findings. It contends the court erred in finding: 1) defendant was negligent in failing to insulate its wires at the place of the accident, 2) defendant's alleged negligence was a proximate cause of decedent's death and 3) decedent was free from contributory negligence.

The evidence will be viewed in the light most favorable to plaintiff--this is also the light most favorable to the trial court's judgment. Its findings of fact have the effect of a special verdict and are binding upon us if supported by substantial evidence. Citation of authority is unnecessary. Rule 344(f)1, Rules of Civil Pro cedure. Our question is whether the trial court's findings are supported by substantial evidence, and we will not weigh the evidence or the credibility of the witness. Phoenix v. Stevens, 256 Iowa ----, 127 N.W.2d 640; Iowa Mutual Insurance Company v. Combes, 256 Iowa ----, 131 N.W.2d 751; Thompson Wholesale Company v. Frink, 256 Iowa ----, 131 N.W.2d 779. That we might reach a different result were we sitting as trier of the facts is of no consequence.

On September 12, 1957, the decedent Cyril Cronk lost his life by electrocution while in the performance of his duties as a foreman of a group of men engaged in digging a ditch for the laying of a water main along the south side of Park Avenue in the city of Des Moines. Defendant's electric transmission lines, consisting of two sets of three wires each, were also located on the south side of Park Avenue and ran in an east and west direction at the point material. Construction work had originated the last of June or first part of July 1957 on the north side of Park Avenue at the intersection of Thomas Beck Road and ran west to a point east of the Great Western Railway tracks; the ditch was then taken across Park Avenue to the south to avoid defendant's high-pressure gas line which ran down the north side of Valley Drive on west on the north side of Park Avenue to the Meredith plant. The main-laying project continued west under the tracks to the west edge of a bridge spanning a small creek located a short distance west of the intersection of Valley Drive and Park Avenue. A ditch was being dug beneath the creek bed. The ditching had been done with a back hoe except at the railroad crossing and creek; in these two places a back hoe would not do the job and a mobile crane mounted on a rubber-tired truck, capable of rotating a full 360 degrees with a projecting arm or boom 30 feet in length supporting a 2800-pound bucket, was used; cables ran from the bucket to the boom. This machine is sometimes referred to as a clam shell bucket. Before noon on September 12 the crane had been used in excavating earth from the east bank of the creek with the projecting arm facing east. In order to permit the west bank of the creek to be excavated and earth moved eastward and dumped in the trench where the pipe had already been laid, it was necessary to turn the machine around to a position in which the arm or boom faced west. Decedent was engaged in getting the truck and crane in proper position to continue the excavation work and was giving signals by hand to a Mr. Beveridge, operator of the truck, and a Mr. Sparks, operator of the crane. In moving the boom a tooth of the bucket came to rest on the west edge of the bridge bannister. Attempting to free the bucket, decedent gave it a push and was electrocuted.

There were no power lines on the north side of the road; it was not until the water company crew crossed the road east of the railroad track and started down the south side of Park Avenue with the new main construction that they were working alongside the power line. The three lower wires forming a part of defendant's transmission line in the area over the bridge were not insulated other than by air and space. There was no insulation on the wires themselves.

At the close of plaintiff's evidence defendant rested; its only evidence was from cross-examination of witnesses for plaintiff and certain exhibits.

The foregoing facts which are not controverted give a sufficient background of the accident for our purposes at this point.

Defendant was aware the water company was engaged in the project of laying a 20-inch main in the vicinity of the accident before the water company crew reached the bridge. This occurred almost two and one-half months after the project started. Marion B. Cummingham, an employee of some forty years of defendant company and superintendent of gas operations for the division including Des Moines, called by plaintiff, testified he was aware the water company was laying a 20-inch main down to the Meredith plant west of the bridge. The gas company had received a couple of calls about broken service in the six inch low-pressure line east of the railroad on the south side of Park Avenue; the service would be going north and south of the main to houses on the north side. The water crew's digging disturbed the lines, producing a leak. Defendant's repair crew made records of these repair calls which form a part of the company's records.

It was the custom and practice between defendant company and the water company to stay on opposite sides of the highway when laying their respective lines.

A. R. Adams, a graduate electrical engineer with 25 years experience who was in charge of defendant's electrical operation in Des Moines at the time of decedent's death, testified he was next man under the vice president of operations of defendant company, it was common in Des Moines for clam shell buckets and back hoe machines to be used in the proximity of overhead conductors such as are shown in the various pictures received as exhibits in this case and that during the period involved herein and for several years prior, there had been a considerable amount of sewer construction and water main construction around the area of Des Moines.

Defendant knew the water company would cross over east of the railroad track so as not to interfere with defendant's highpressure gas line on the north side and that the water company crew would be working in the area of defendant's bare power wires with back hoe machines and clam shell buckets.

The foregoing would justify the following findings made by the court.

'It was reasonably to be anticipated and the defendant either knew or should have known that men would likely be working in the streets with modern machinery, such as was used in this instance, for purpose of excavating or digging ditches or trenches for the laying of water mains. The decedent was lawfully in the use of Park Avenue in his work at the time of his death.'

Adams testified that although defendant's high-tension line was insulated by air and space at the point involved in conformity with the standards of the National Electrical Safety Code, with bare wires carrying 13,800 volts, electricity will jump or arc from one-half inch to an inch and if a grounded object, such as the boom of the rubber-tired crane in this instance, came within such distance electricity will are over to the object without actual contact. Once the arc is established the grounded object can be removed several inches and under certain conditions as far as one to three feet, and electricity will continue to flow through it to the ground.

He also testified there was an insulation material which could be provided on those wires which, assuming it worked in all cases, could prevent such a contact or prevent completion of the circuit and thus prevent the arcing or jumping over of the electricity.

Sparks testified that as Cronk gave the bucket a shove it swung away from him and he saw arcs of electricity come from decedent's hands. Sparks then looked up at the boom. It was not in contact with the wires. He testified he couldn't accurately say how far the boom was from the wires as he was 30 feet from the end, but at that distance he would guess five or six inches. There was no bounce to the boom when the tooth of the bucket hung up on the corner of the bridge. The bucket was empty and the cable was carrying the weight. After Cronk dropped, Sparks held the bucket in position until they removed him. Upon later inspection no fresh scars or marks were found on the crane or boom.

Emmett Rogers testified that from his position he could see the decedent put his hand on the bucket, the witness glanced up toward the boom, there was a spark up towards the boom and when he looked back decedent was rolling over and his feet hung over the bank of the creek. He further testified the boom was pretty close to the wires, but it didn't look like it made contact and his best judgment was that the boom did not touch the wire.

Defendant's transmission lines were located in the street south of the traveled portion thereof; decedent was lawfully in this right of way installing the water main.

This evidence would warrant a finding that 'under favorable physical, weather and atmospheric conditions current will arc or jump from a line transmitting electricity to an object in close proximity to it but which is not in actual contact with it. In such a case the object becomes energized...