Crouch v. Mississippi Power & Light Co., 44084

• Citation: 193 So.2d 144
• Decision Date: 17 October 1966
• Docket Number: No. 44084,44084
• Court: United States State Supreme Court of Mississippi
• Parties: Robert CROUCH v. MISSISSIPPI POWER & LIGHT COMPANY, Floyd Pinkerton and Thomas Box.

Page 144

193 So.2d 144

Robert CROUCH v. MISSISSIPPI POWER & LIGHT COMPANY, Floyd Pinkerton and Thomas Box.

No. 44084.

Supreme Court of Mississippi.

Oct. 17, 1966.

Suggestion of Error Overruled Jan. 3, 1967.

William Liston, Winona, Melvin B. Bishop, Daniel, Coker & Horton, Jackson, for appellant.

Wise, Smith & Carter, Satterfield, Shell, Williams & Buford, Cary E. Bufkin, Green, Green & Cheney, Jackson, for appellees.

SMITH, Justice.

This was an action for damages for personal injuries brought by appellant, Robert Crouch, against appellees, Mississippi Power & Light Company and two of its employees, Floyd Pinkerton and Thomas Box. The case was tried in the Circuit Court of the First Judicial District of Hinds County and resulted in a jury verdict for all of the defendants, appellees here.

The declaration alleges that appellant was injured when he came in contact with an 8000-volt power transmission line of appellee Mississippi Power & Light Company at the point where it crosses U.S. Highway #82. This was alleged to have occurred while appellant was engaged in moving a house along the highway and at a time when appellees Pinkerton and Box, as employees and agents of the power company, were, at appellant's request, 'acting in a supervisory capacity' with respect to providing safe passage for the house beneath the power transmission lines. The declaration alleges, and plaintiff testified, in substance, that he was injured when he was directed by appellee Pinkerton, power company serviceman, 'to take hold of an uninsulated wire and life it' so as to permit the passage of the house under it, appellant having been on top of the house at the time. It is alleged that, as he did so, he came in contact with the power line carrying 8000 volts of electricity.

On this appeal, appellant first contends that he was entitled to a directed verdict upon the issue of liability.

The testimony relating to the circumstances of appellant's injury is in irreconcilable conflict and presents an issue of fact for determination by the jury. For that reason, the trial court was correct in declining to direct the jury peremptorily to return a verdict for appellant against appellees upon the issue of liability.

Several other grounds for reversal are assigned and argued.

Appellant criticizes, among others, Jury Instruction #1 granted appellee by the trial court. It is argued that it contained an incorrect statement of the law, was improper under the facts in this case, and misled the jury. This instruction quoted at length Mississippi Code Annotated section 2778 (1956) and referred to the National Electrical Safety Code requiring that electric power transmission lines be so erected and maintained that such lines would not be dangerous to persons or property nor interfere with the common use of roads and streets. By this instruction, the jurors were informed that if they should believe that the distribution line met these requirements, appellees were not negligent 'insofar as the erection and maintenance' of such lines were concerned, and there could be no liability on the part of appellees on account of the erection and maintenance of the lines. In this case, there was no question as to the erection or maintenance of the lines. The moving of the house beneath the lines, under the circumstances in evidence, was not a 'common use of the highway.' This instruction should not have been given and was capable of misleading the jury. Moreover, it is contrary to the rule announced in Mississippi Power & Light Co. v. Walters, 248 Miss. 206, 158 So.2d 2, 160 So.2d 908 (1963) and Galloway v. Singing River Elec. Power Ass'n, 247 Miss. 308, 152 So.2d 710 (1963). In the latter case, the Court said that whether a utility is negligent despite compliance with the National Electrical Safety Code is ordinarily a question for the jury.

Appellant contends that it was prejudicial error on the part of the trial court to grant appellees' Instruction #6. This instruction is as follows:

'The Court instructs the jury for the defendants that if you should believe from a preponderance of the evidence in this case that the plaintiff, Robert Crouch, knew and appreciated the dangers existing in connection with the overhead power line in question, and that he, knowing and appreciating these dangers, knowingly and voluntarily placed himself in a position so that he would come into contact with such overhead power line, then the Court instructs you that the plaintiff assumed the risks incident thereto, including the negligence of the defendants, if any, and, if you so believe from a preponderance of the evidence,

the defendants are not liable for the plaintiff's injuries and your verdict, in that event, must be for the defendants.' (Emphasis added.)

The trial court was in error in granting this instruction and his action in doing so requires that the judgment be reversed and the case remanded for a new trial.

Mississippi Code Annotated section 1454 (1956) provides:

'In all actions hereafter brought for personal injuries, or where such injuries have resulted in death, or for injury to property, the fact that the person injured, or the owner of the property, or person having control over the property may have been guilty of contributory negligence shall not bar a recovery, but damages shall be diminished by the jury in proportion to the amount of negligence attributable to the person injured, or the owner of the property, or the person having control over the property.'

The above instruction prevented the application by the jury of the comparative negligence doctrine and eliminated any distinction between assumption of the risk and contributory negligence. Wallace v. J. C. Penney Co., 236 Miss. 367, 109 So.2d 876 (1959).

Under the provisions of section 1454, appellant did not assume the risk 'including the negligence' of the appellees. If the jury should find that appellant's negligence combined with negligence on the part of appellees as a proximate cause of the injury, nevertheless, he would be entitled to recover, the amount of recovery to be reduced as required by the statute.

Ten instructions were granted at the request of appellant and twenty-one at the request of appellees. Omitting appellees' Instructions #1 and #6, discussed above, when read together, these instructions embodied a correct statement of applicable law. Other errors assigned are without merit or...