Elliott v. Black River Elec. Co-op.

• Citation: 104 S.E.2d 357,233 S.C. 233,74 A.L.R.2d 907
• Decision Date: 11 July 1958
• Docket Number: No. 17446,17446
• Parties: , 74 A.L.R.2d 907 Ara H. ELLIOTT, Adm'x, Respondent, v. BLACK RIVER ELECTRIC COOPERATIVE, Appellant.
• Court: United States State Supreme Court of South Carolina

Page 357

104 S.E.2d 357

233 S.C. 233, 74 A.L.R.2d 907

Ara H. ELLIOTT, Adm'x, Respondent, v. BLACK RIVER ELECTRIC COOPERATIVE, Appellant.

No. 17446.

Supreme Court of South Carolina.

July 11, 1958.

deLoach, Wilson & deLoach, Camden, George D. Levy, Nash & Wilson, Sumter, for appellant.

John C. West, Donald H. Holland, J. Clater Arrants, Camden, J. P. Mozingo, III, B. R. Greer, A. L. Chandler, Darlington, for respondent.

LEGGE, Justice.

On June 9, 1956, while engaged in pulling the lift rod from his well, J. Marvin Elliott, a farmer of Kershaw County, was killed by a disruptive discharge of electricity from a highly charged uninsulated wire maintained by Black River Electric Cooperative, Inc., directly above the pump house. Plaintiff, as administratrix of his estate, for the benefit of herself, as his widow, and their seven children, brought this action against the Cooperative for his alleged wrongful death. The case was tried at the November, 1957, term of the Court of Common Pleas for Kershaw County, before the Honorable Steve C. Griffith, Presiding Judge, and a jury. Defendant's timely motions for nonsuit and direction of verdict were overruled, and the case was submitted to the jury, who found for the plaintiff $106,100 actual, and $5,000 punitive, damages. Thereafter, defendant's motion for judgment n. o. v. or for new trial was denied; and defendant now appeals on numerous exceptions, to which we shall later refer.

Mr. Elliott, who was a carpenter as well as a farmer, built his home in 1940 or 1941. At that time there was no electricity on the property, and water was obtained by means of a hand pump. In 1943, another hand pump was put down a short distance from the house. In 1947, the defendant brought electric current from its line on the highway to a transformer pole that it erected near the house, and, from that pole ran a two-wire line to the house. Some time later, when the Elliotts installed an electric stove in their home, a third wire was run. Under date February 4, 1947, Mr. Elliott executed the usual deed granting to the defendant the right and easement to enter his land and construct, operate and maintain thereon 'an electric transmission or distribution line or system'. About that time the hand pump last mentioned was replaced by an electric pump, and a pump house was built around it. The walls of the pump house were of brick and about four and a half to five feet in height; its roof was removable; its floor was of dirt and a few inches below ground level.

In 1950, electricity being desired at a Forestry Commission fire station some seven-tenths of a mile away, defendant's representative obtained from Mr. Elliott permission to run a line from the transformer pole near his house to the station, and the defendant located and constructed this line, consisting of two wires, one above the other. The upper wire carried 7,200 volts; the lower was a neutral, or ground wire. They passed over the approximate center of the pump house, the lower wire being at that point 18 feet 9 inches, and the upper, or 'hot', wire 21 feet 6 inches, above the ground.

The well was 41 feet deep, and consisted of a two-inch pipe, inside of which was a lift rod about three-eighths of an inch in diameter. The casing pipe was in three sections, the bottom one being 21 feet long and each of the upper two 10 feet long. The pump rod, or lift rod, likewise consisted of two ten-foot sections on top of a twenty-one foot section.

On the morning of June 9, 1956, the pump not bringing up any water, Mr. Elliott, together with his son John, aged 23, and a farm hand, McNeely, aged 21, undertook to pull up the casing and lift rod and replace the valves that were attached to the bottom of the lift rod. The roof of the pump house having been removed, and the electric motor taken off the top of the casing, a tripod of rough timber, 2"' X 4"' X 16', was put over the pump house, so that after the two ten-foot sections had been disconnected and removed, the twenty-one foot section could be guided through the apex of the tripod (which was six or seven feet above the top of the pump house) so as to avoid the wires overhead. Two large timbers, one 2"' X 8"' and the other 4"' X 12"', were placed across the top of the pump house and leveled, so that John Elliott and McNeely could stand on them and feed the 21-foot section, as it was lifted out of the well, through the apex of the tripod.

The lift rod was thus taken out and replaced, with new valves; but after brief operation the pump 'sandlocked', and the lift rod 'froze'. Mr. Elliott then borrowed a neighbor's jack, and they jacked up the casing, cut the lift rod off with a hacksaw at the top of the 21-foot section, and removed both casing and lift rod. It was then about mid-day, and since it was necessary to send to the nearby village of Cassatt to buy new casing, lift rod, valves, cylinder and point, it was decided to stop work until after dinner. Mr. Mozier, from whom the new equipment had been purchased, came over after dinner to help. The new casing and lift rod were put down, after some difficulty because of sand; they were pulled up, and again put down, but the pump was still not operating properly, and it was concluded that the cylinder was not tight enough. To correct this required pulling the lift rod out again. It was then about 8:30 p. m. Inside the pump house were Mr. Elliott and Mr. Mozier; light there was furnished by a 100-watt electric bulb at the end of a 'drop-cord' run from the back porch of the house. The two 10-foot sections of the lift rod having been disconnected and removed, young Elliott and McNeely stood, facing each other, on the timbers that had been laid across the top of the pump house. Their job was, as it had been during all of the previous operations, to feet the lift rod through the apex of the tripod. A 100-watt bulb with a large reflector clamped to one of the timbers on top of the pump house, was directed upward to illuminate the apex of the tripod and the wires above it.

That morning it had rained; and the evening was foggy. Water was on the dirt floor of the pump house, where Mr. Elliott was working. At about 9:00 o'clock, as the 21-foot section of the lift rod was coming up (Mr. Elliott lifting from below, young Elliott, on top, lifting and guiding, McNeely helping to guide it), the current from the 7,200 volt wire arced to the lift rod. Young Elliott, McNeely and Mozier were knocked down. Mr. Elliott was killed.

Both Mrs. Elliott and John Elliott testified that the decedent had no special knowledge of electricity, and had never worked with it; that he was afraid of it; that he had not done the electric wiring of the house or any electrical installation in it; and that in the course of his carpentry on houses of others he would have nothing to do with the electrical work. It was testified also that it is a commonplace occurrence that the valves on pumps in rural areas need to be repaired or replaced about once a year; and that in such areas the 21-foot section of casing and lift rod is standard. It is undisputed that about once a year, from the time when the electric line was installed in 1950, Mr. Elliott had been taking up and replacing the lift rod of this pump by the same method that was being followed on the day of the accident. There was no evidence that he had been warned or informed that the line above the pump house carried high voltage. John Elliott, who had helped his father in this work several times, testified that he knew nothing of electricity and had never been told by anyone, and did not know, that these wires carried a dangerous voltage; that they looked just like the two wires that had been first run into the home; and that the purpose of the tripod through which the lift rod was guided as it was drawn up from the well was to prevent the rod from bending or swaying and becoming entangled with the wires and knocking them down. Both he and McNeely testified that at the time of the accident they were looking up, guiding the rod through the tripod; that the top of the tripod and the wires above it were well illuminated by the 100-watt bulb and reflector on top of the pump house; and that the rod never came in contact with either wire, but was some eight inches from the upper wire when the current arced to it. This testimony, so far as it related to the length of the arc, was in conflict with that of the expert witnesses on both sides. These witnesses, electrical engineers, testified that under the atmospheric conditions existing, according to the testimony, on the night of the accident, the current would have arced not more than one inch, but that, having arced, the arc could have been drawn out several inches as the lift rod moved away.

It is undisputed that there were no signs in the vicinity of the pump house warning of danger from the high-voltage line. For the plaintiff, an electrical engineer experienced in the planning and construction of high-voltage lines testified that in locating such a line across farm property the location of an existing well is an important factor to be considered, because of the common knowledge that the pipes and other parts must be pulled up from time to time for servicing; that the location of the line in question directly over the pump was unsafe; that to have offset it to a safe distance from the pump would have been a simple matter, costing, according to his estimate, $50.60 inclusive of labor; and that if the line was to be run directly over the pump house, there should have been at least 32 feet of clearance, which could have been obtained by using two 40-foot poles, at a cost, over that of the poles actually used, of less than $40. Defendant's expert witness, also an electrical engineer of many years' experience in the construction of rural distribution lines, conceded that construction of this line so as to avoid passing over the pump house, as contended for by the plaintiff...