Dilley v. Iowa Public Service Co.

• Decision Date: 22 October 1929
• Docket Number: 39946
• Parties: EDWARD M. DILLEY, Administrator, Appellant, v. IOWA PUBLIC SERVICE COMPANY, Appellee
• Court: Iowa Supreme Court

227 N.W. 173

210 Iowa 1332

EDWARD M. DILLEY, Administrator, Appellant, v. IOWA PUBLIC SERVICE COMPANY, Appellee

No. 39946

Supreme Court of Iowa, Des Moines

October 22, 1929

REHEARING DENIED OCTOBER 23, 1930.

Appeal from Plymouth District Court.--C. C. BRADLEY, Judge.

Action by an administrator for damages for the death of his intestate, resulting from contact with an electric transmission line of high voltage. At the close of all the evidence, upon motion of the defendant, the court directed a verdict for the defendant. The plaintiff has appealed.

Affirmed.

Charles R. Metcalfe, for appellant.

Price & Burnquist and Guy T. Struble, for appellee.

EVANS J. ALBERT, C. J., and FAVILLE, DE GRAFF, and KINDIG, JJ concur.

OPINION

EVANS, J.

I.

The defendant is a public utility corporation, which owns and operates an electric system, and includes in its service the town of Kingsley. The decedent was a boy nine years and three months of age, who was flying a kite in the streets of Kingsley. His "string" was a fine copper wire, which came in contact with the transmission line of the defendant. The voltage of the transmission line was 33,000. The contact resulted in the death of the boy. The flying of the kite was in violation of a city ordinance forbidding the flying of kites within the city. The plaintiff predicated his action upon the "specific negligence" alleged in his petition. This was: (1) That the defendant was maintaining a transmission line of high voltage (33,000) on the streets of Kingsley without any authority therefor; (2) that it maintained said line without proper insulation or guard against injury therefrom. All the evidence was directed to these propositions.

It is undisputed that the defendant holds a franchise under Ordinance 44 of the city of Kingsley, to operate an electric power plant for the purpose of supplying the town of Kingsley and its inhabitants with electric energy, the same to be generated inside or outside the town, as the company may elect. The right to use the streets for such purpose is granted. The point made by plaintiff is that such ordinance did not in express terms confer a right upon the defendant to maintain a transmission line of high voltage over its streets. It appears that the necessary voltage for distribution in the town of Kingsley is 2,300 units. The electric energy furnished by the defendant is generated outside of the town and at a considerable distance therefrom. The transmission line is not for the sole use of Kingsley. It carries the electric energy for other towns, as well as for Kingsley. The ordinance does not in express terms either permit or forbid the construction of transmission lines over the streets of the city. It does contain provisions, however, which clearly imply permission to that end. For instance, under Section 2 it is provided that the electric energy may be generated "outside said town," in which event the "grantee shall erect and maintain a sub-station within said town." In Section 3 it is provided:

"If the electric energy is generated outside of the town, then all transmission wires used shall not be smaller than No. 6 solid copper wire."

Section 4 provides:

"All poles supporting wires carrying current voltage in excess of 2,300 volts shall not be less than seven-inch tops, and 35 feet long. The construction shall be standard, substantial, and of first-class material. Grantee shall, however, have the right to trim trees along the streets and alleys, in order to provide and maintain a safe installation of high-voltage wires."

Section 5 provides:

"Whenever any poles, wires, or other construction of the transmission lines or distribution system hereby authorized shall be in such a position as to interfere with the moving of any building," etc.

It is not claimed that the authority of the corporation to maintain these transmission lines has ever been challenged by the public authorities. We deem it apparent that the construction and maintenance of the transmission lines were within the contemplation of the ordinance, and that such has been the construction mutually put upon it by the city and by the grantee. The claim of the plaintiff that the occupancy of the street for the maintenance of the transmission lines was without authority is, therefore, not tenable.

II. The second point urged by the plaintiff is that the transmission lines were not properly insulated or guarded. To this question the testimony of experts was directed. These wires were not covered with any so-called insulating material. It appears from the undisputed testimony of the experts on both sides that there is no material known which can be made efficient as an insulating covering for wires carrying high voltage. In the early history of the art, various devices were used, and successively abandoned. The only practicable means of insulating known to the experts is atmospheric space. Transmission lines are, therefore, carried at a great height. The ordinance under consideration required poles to be 35 feet high. The height actually adopted by the utility company was 40 feet. Isolation of the wire is the objective. A guard wire was extended 29 inches above the transmission line, and this was grounded at the poles. The special purpose of this guard wire was to counter-act the effect of lightning.

The only semblance of dispute in the record is at this point. The plaintiff called as witnesses two experts, who described a scheme of insulation or guard which was in vogue to some extent prior to 1916. This was known as the "basket" or "cage" system. It consisted in extending beneath the transmission line three wires, 18 inches apart, and held in place by wooden stays. The principal purpose of this scheme was to prevent the falling of a broken transmission line. That is, it was intended to maintain isolation of the line in the emergency of a break. The contention of the plaintiff is that, if that system had been in use by the defendant, it would probably have prevented the contact of the kite string with the transmission line. It was not claimed by the experts for the plaintiff that this system was in vogue at the present time at any place. By the experts for the defendant it was stated that the system was not in use anywhere, and had not been since the year 1916. It further appears that, in or about the year 1916, a certain set of rules known as the Safety Code came into vogue. It was formulated through the co-operation of many experts, representing electric companies, telephone companies, and telegraph companies. This Safety Code met the universal approval and adoption of the great body of enterprise engaged in electrical activities. It was adopted by the Bureau of Standards of Washington, D.C and is universally recognized as standard. This is undisputed. Under the statutes of this state, the railroad commission is empowered to make regulations for the construction of transmission lines within its jurisdiction. It has adopted the Safety Code above referred to as standard. True, its jurisdiction does not extend to cities. The legislature has indirectly recognized such standard by its amendment of Section 1527-c of the 1913 Supp...