Dixon v. Kentucky Utilities Co.

• Decision Date: 14 May 1943
• Citation: 295 Ky. 32,174 S.W.2d 19
• Parties: DIXON v. KENTUCKY UTILITIES CO.
• Court: Kentucky Court of Appeals

174 S.W.2d 19

295 Ky. 32

DIXON v. KENTUCKY UTILITIES CO.

Court of Appeals of Kentucky

May 14, 1943

Rehearing Denied October 15, 1943.

Appeal from Circuit Court, Laurel County; Franklin P. Stivers Judge.

Action by Myrtle Dixon, administratrix of the estate of Mary Sue Dixon, deceased, against the Kentucky Utilities Company to recover damages for deceased's death. Judgment for defendant, and plaintiff appeals.

Affirmed.

William Lewis & Son, of London, for appellant.

Ogden Galphin, Tarrant & Street, of Louisville, and William A Hamm, of London, for appellee.

TILFORD Justice.

Appellant's decedent, an eleven year old girl, was electrocuted as the result of her hands having come in contact with a wire fence which had become charged with electricity from a wire transmitting electric current from appellee's distribution plant in East London, Kentucky, to transformers. The accident occurred a few minutes after a motorist, endeavoring to escape the police, had driven off the highway and struck and broken a pole carrying the charged wire, causing it to tilt or lean in such a manner as to bring the wire into contact with a barbed wire constituting the top strand of the fence. The decedent who lived nearby was stamping out a fire, in the dry grass, resulting from the collision when she inadvertently took hold of the fence; and it is not contended that sufficient time had elapsed between the dislodgment of the pole and decedent's contact with the charged fence to have enabled the appellee to have removed the hazard created by the lowered wire. It is contended, however, that the appellee was negligent during many months immediately preceding the accident in permitting the wire carrying the heavy voltage to sag to within three feet of the barbed wire between the pole in question and the pole next in line, where the contact between the wires occurred; and one witness for appellant gave it as his opinion that had the wire not been permitted to sag to the extent indicated, the breaking of the pole and its subsequent change in position would not have lowered the wire sufficiently to have brought about its contact with the barbed wire. It should here be noted that, although a large piece was broken out of it at its base, the pole, instead of falling, was carried by the impact of the automobile to a point beyond and above the gulley in which it had been originally planted, and, supported by the wires maintained a leaning position. Some of the testimony introduced by appellant indicated that the pole had leaned slightly for some time prior to the collision, and because a cut-out in the service wire with which the wire in question connected did not operate to degenerize the latter when it came into contact with the barbed wire, it is suggested that there was some evidence of defective appliances or defective equipment. But the failure of the fuse cut-out was thoroughly explained by the fact that there was not a sufficient contact or "ground" between the wire fence, which was attached to locust posts, and the earth, to permit enough current to flow and bring about an overload, and there was no evidence introduced by appellant that either the particular fuse cutout referred to or those located at the substation, or any of appellee's equipment, was in anywise defective or insufficient. On the contrary, the evidence showed that the equipment was modern and of the proper design, and, although appellant's brief contains the suggestion above referred to relative to the failure of the fuse cut-out in the main wire to operate, it also contains this statement:

"What the plaintiff is complaining of in this case is that the defendant, Company, was negligent in permitting one of its power poles, near the intersection of Can Street with Dixie Highway No. 25, south of London, being out of line and leaning and out of repair, and that it had been for many months next before the accident in that condition, and that the defendant knew about its condition, or could have known it by the exercise of any degree of care, and the plaintiff is complaining that the defendant, Company, with gross carelessness and negligence, suffered and permitted one of its high tension wires, charged with a high and dangerous current of electricity, connected with this leaning pole and extending east out Can Street, and connected with another one of its power poles also, for many months next before the accident to greatly sag and get out of repair and in a dangerous condition, sagging down over the top of a woven wire and barb wire fence, and over which the power line had been erected, and that often times this high tension wire was sagged down within a few feet of the top of that wire fence."

It was charged in the petition that the death of appellant's decedent was due to the concurrent gross negligence of the appellee and the motorist who collided with the pole. The defense was that the decedent's death was due solely to the negligence of the motorist. In view of the fact that there was evidence indicating that the appellee had not used required care to prevent the wire in question from sagging, and that the pole had leaned to some extent prior to the accident, the Trial Court, since it peremptorily instructed the jury to find a verdict for the appellee, obviously concluded that though appellee might have been negligent in the particulars claimed by appellant, such negligence was not a proximate cause of decedent's death. On this appeal from the judgment rendered on that verdict, we shall assume the truth of appellant's testimony respecting the sagging of the wire and the leaning of the pole, although it was vigorously disputed, and indulge the theory, the correctness of which was not established by the proof, that had the wire not been permitted to sag, the breaking and dislodgement of the pole would not have caused the wire to come into contact with the barbed wire, and determine appellee's legal responsibility for the fatality in the light of these assumptions and indulgences. Hence, it only remains to be determined whether the sagging of the wire and the leaning of the pole constituted a concurring proximate cause imposing liability, or a remote cause for which no liability attaches.

To constitute a "proximate cause" of an injury, the negligence complained of need not be the direct or immediate cause, but it must do more, unless the injurious result is foreseeable, than merely furnish the condition or give rise to the occasion by which the injury was made possible. If it is not the immediate or direct cause but requires the intervention of an immediate or direct cause to bring about the result, it is regarded as a "concurring proximate cause" imposing liability upon those responsible for it only when the intervention of the immediate cause and the resulting injury could or should have been foreseen in the light of the circumstances. As said by Professor Joseph H. Beale in his admirable treatise, "The Proximate Consequences of an Act", 33 Harvard Law Review 633:

"If the defendant's active force has come to rest, but in a dangerous position, creating a new or increasing an existing risk of loss, and the foreseen danger comes to pass, operating harmfully on the condition created by defendant and causing the risked loss, we say that the injury thereby created is a proximate consequence of

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