Dunagan v. Appalachian Power Co.

• Decision Date: 10 January 1928
• Docket Number: No. 2655.,2655.
• Citation: 23 F.2d 395
• Parties: DUNAGAN v. APPALACHIAN POWER CO.
• Court: U.S. Court of Appeals — Fourth Circuit

23 F.2d 395 (1928)

DUNAGAN v. APPALACHIAN POWER CO.

No. 2655.

Circuit Court of Appeals, Fourth Circuit.

January 10, 1928.

William H. Werth, of Tazewell, Va., for plaintiff in error.

Robert E. Scott, of Richmond, Va. (Bernard McClaugherty and George Richardson, Jr., both of Bluefield, W. Va., on the brief), for defendant in error.

Before WADDILL, PARKER, and NORTHCOTT, Circuit Judges.

NORTHCOTT, Circuit Judge.

This is an action at law, brought in the circuit court of Mercer county, West Virginia, by Ellen Mary Dunagan, administratrix of the estate of Emery Dunagan, deceased, against the Appalachian Power Company, a corporation, to recover damages for the death of Emery Dunagan. The action was brought in September, 1924, and on petition of the defendant was removed to the District Court of the United States for the Southern District of West Virginia. There was a trial of the cause in January, 1925, and upon motion of the defendant the trial court directed a verdict for the defendant. A writ of error was sued out, and upon hearing in the Circuit Court of Appeals for this circuit the judgment was reversed and a new trial awarded. 11 F.(2d) p. 65. On the 28th of January, 1927, another trial was had and the cause submitted to the jury, which returned a verdict for the defendant. From the final judgment of the court upon this verdict, this writ of error was sued out.

There was some additional evidence on the second trial of the cause, and some additional facts were introduced. The deceased, Emery Dunagan, was an employee of the Pocahontas Fuel Company. He was a stable boss, and also had charge of the operation of an electric fan. The defendant generates, distributes, and sells electricity. Its lines not only supported high voltage transmission, and less heavily charged, but still deadly, lighting lines, but also telephone wires as well. These lines passed through or along the property of the Pocahontas Fuel Company, which was a customer of the defendant, and for which company the deceased worked. The defendant furnished the fuel company electricity to light its stable and operate its fan. On a pole near the stable where the deceased worked was a switch, by which the current could be cut off from the stable. Some 2½ hours before Dunagan was killed, at a point some 3 miles in the direction towards the defendant's power house, a broken insulator was noticed. This caused electrical disturbances, serious enough to attract attention in the neighborhood, and to break some of the wires upon defendant's line. Some 20 or 30 minutes before the accident, the telephone line on the pole opposite the shanty in which Dunagan was, and which, in the direction of the defendant's plant, was next that upon which the switch was, began to arc, at first intermittently, and then continuously, finally producing what appeared to be a solid ball of fire.

Upon this the deceased declared that "something had to be done," and that he had "a switch up there which he could pull and throw the current off that line." Dunagan got up and started to the switch pole. The witness, who was with him in the shanty, and who, so far as the record discloses, was the only person in the neighborhood, waited 2 or 3 minutes before following him. When this witness got close to the switch in question, he saw Dunagan lying on the ground some 15 or 18 feet from the pole upon which the switch-box was fastened, with his arms outstretched and with one hand reached within about 6 inches of the wire fence that surrounded it. The deceased struggled once or twice after the witness saw him on the ground, but he never spoke again. Medical examination shows that his death was due to an electric shock, which had apparently been communicated through his body by his having grasped some heavily electrically charged substance with his right hand. In the opinion in the former case (Ellen Mary Dunagan, Administratrix, v. Appalachian Power Co., supra) Judge Rose says:

"The defective condition of the defendant's appliances had created such a situation as threatened immediate peril to the property which the decedent was employed to watch. Any man in his place might well feel that he was bound to do all that he could for its protection. If he judged wrongly, it was because he was placed in a situation brought about by the defendant, and which seemed to call for prompt action. If the fuel company had been an individual, personally present, it would have been entitled to do what in reason it could to protect its property. In the decedent's relation to the company, he stood in its shoes. Ivy v. Wilson, Cheves (S. C.) 74; Liming v. Illinois Central R. Co., 81 Iowa, 246, 253, 47 N. W. 66; Thorn v. James, 14 Manitoba, 373; 1 Shearman & Redfield on Negligence, § 85d. We cannot hold as a matter of law that a man of ordinary prudence would not have been justified in doing for the protection of his property all that the decedent did.

"It is true that the record as it stands does not show that what was wrong on defendant's line threatened any immediate danger to human life, to save which one may take chances which he might not be justified in doing merely to protect property. Nevertheless, as the authorities already cited teach, he who acts to guard property, whether of his own, of his employer, or of a third person, threatened by the consequences of the negligence of some one else, may properly do what he could otherwise attempt only at his own risk. We do not see anything to show that decedent acted as an ordinarily prudent man, under the circumstances in which he found himself, would not have done, and therefore such cases as Pegram v. Seaboard Air Line, 139 N. C. 303, 51 S. E. 975, 4 Ann. Cas. 214, are not in point."

There were seven assignments of error, which will be considered in the order in which they are stated in the record.

As to the first assignment of error,...