Driver v. Potomac Elec. Power Co.
| Decision Date | 06 June 1967 |
| Docket Number | No. 404,404 |
| Parties | Arthur L. DRIVER, Minor, etc. v. POTOMAC ELECTRIC POWER COMPANY. |
| Court | Maryland Court of Appeals |
Jacob S. Levin, Langley Park, and Frank B. Haskell, III, Upper Marlboro (Mitchell, Clagett & Euwer, Upper Marlboro, and Applestein & Applestein, Washington, D. C., on the brief), for appellant.
Jerrold V. Powers, Upper Marlboro (Sasscer, Clagett, Powers & Channing and Martin H. Freeman, Upper Marlboro, and Hamilton & Hamilton and Thomas A. Flannery, Washington, D. C., on the brief), for appellee.
Before HAMMOND, C. J., and HORNEY, MARBURY, BARNES, McWILLIAMS and FINAN, JJ.
In this case, where a workman (Arthur L. Driver) was injured when the boom of a well-digging rig came into contact with an electric transmission line while he and a co-worker 1 were operating the rig on the right of way of a power company (Potomac Electric Power Company), the question is whether the lower court erred in entering judgment as a matter of law in favor of the defendant against the plaintiff.
The plaintiff in essence alleged that the defendant was negligent in the construction and maintenance of its right of way and the poles and wires thereon in that the wires were not properly insulated and were allowed to hang too close to the ground and in that it failed to post warnings of the dangerous nature of the high voltage wires.
The defendant filed the customary general issue pleas and then moved for summary judgment as a matter of law on the ground that there was no genuine dispute as to a material fact and filed therewith the supporting affidavits of three witnesses. The supporting affidavit made by the president of the corporation that had been engaged for about a year in building houses along one side of the right of way and had contracted with an artisan (by whom the plaintiff was employed) to dig dry wells on the back of the lots on which houses were being built stated that the men on the rig had been informed that they were working near 'hot stuff' and to stay clear of the power lines. The other two supporting affidavits made by qualified and experienced inspectors in the employment of the power company were to the effect that they were familiar with the provisions of the safety code of the electrical industries and had found that the construction and clearances of the facilities exceeded the minimum requirements of the code; and one of the inspectors added that when he visited the scene of the accident the following day he found that the well-digging rig was standing under the transmission lines, that the bare copper conductor suspended between the poles was more than twenty-three feet above grade and that the twenty-eight foot boom on the rig had electrical burn marks about two feet below the top.
In an opposing affidavit, the driver of the truck on which the digging rig was mounted, besides saying that he was unaware the overhead wires (estimated by him to be approximately eighteen feet high) carried electricity, that he thought they were telephone wires and that he had not been warned (either personally or otherwise) that the wires were dangerous, also stated that he had driven the truck under the wires and then backed to a position where the hood was below the wires and the back was near the rig located 'between the house and the wires.' He added that although he did not actually see the boom touch the wires as it was being raised, he heard a noise and saw a light run down the boom, but he did not say why he parked where he did or why the workmen were operating the rig on the narrow right of way in close proximity to the wires overhead. The two opposing affidavits made by the seventeen year old plaintiff having an eighth grade education were to the effect that he was not aware the wires he saw were carrying electricity and denied he had been informed that they were dangerous. Although he would have seen had he looked that the longer boom when raised could possibly become snarled with the wires, he apparently took no precautions for his safety and instead undertook to operate, or assist in the operation of, the rig despite the obviously dangerous situation he was chargeable with seeing. A copy of the one hundred and ten foot right of way agreement was attached to the supplemental affidavit of the plaintiff. By its terms, the grantors granted to the power company the right to construct and maintain a pole line with its fixtures and appurtenances for the transmission and distribution of electricity and the right to keep the easement clear of trees, buildings and obstructions, but the grantors reserved unto themselves such rights (for agricultural and other purposes) as were not inconsistent with the use of the right of way by the grantee.
The lower court, in ruling that the defendant was not required to anticipate the occurrence of the accident and that the plaintiff failed to take reasonable care to discover and avoid suggestive and obvious danger, entered a summary judgment in favor of the defendant. Usually it is neither advisable nor practicable to enter a summary judgment in a tort action, but there was no reason why it should not have been done in this instance.
On appeal, the injured workman, claiming the power company had constructive notice that houses were being built in the area and should have foreseen that someone might be injured in an accident such as he had, contends that there were material questions of fact which should have been submitted to the jury. On the contrary, the power company contends that there was no basis for a finding that it could have been primarily negligent.
We think that summary judgment was properly granted. In this case where the supporting affidavits, on the one hand, are to the effect that the injured workman was warned that the overhead wires carried electricity and that the construction and maintenance of the power line was well within the recognized safety standards; and the opposing affidavits, on the other hand, stated that no warning had been given or posted and that the workman was not aware of the dangerous nature of the wires, the circumstances seems to present a question of fact rather than a matter of law, but that is not the real situation. For, in considering the facts and proper...
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