Engleman v. Nebraska Public Power Dist.

• Decision Date: 17 June 1988
• Docket Number: Nos. 86-580,86-581 and 86-582,s. 86-580
• Citation: 228 Neb. 788,424 N.W.2d 596
• Parties: Lynn ENGLEMAN, Appellant, v. NEBRASKA PUBLIC POWER DISTRICT, Third-Party Plaintiff, and Floyd Engleman, Third-Party Defendant, Appellees. Kenton D. SCHAUB, Appellant, v. NEBRASKA PUBLIC POWER DISTRICT, Third-Party Plaintiff, and Floyd Engleman, Third-Party Defendant, Appellees. Ruth ENGLEMAN, Personal Representative of the Estate of Donald Engleman, Deceased, Appellant, v. NEBRASKA PUBLIC POWER DISTRICT, Third-Party Plaintiff, and Floyd Engleman, Third-Party Defendant, Appellees.
• Court: Nebraska Supreme Court

Page 596

424 N.W.2d 596

228 Neb. 788

Lynn ENGLEMAN, Appellant, v. NEBRASKA PUBLIC POWER DISTRICT, Third-Party Plaintiff and Floyd Engleman, Third-Party Defendant, Appellees Kenton D. SCHAUB, Appellant, v. NEBRASKA PUBLIC POWER DISTRICT, Third-Party Plaintiff and Floyd Engleman, Third-Party Defendant, Appellees Ruth ENGLEMAN, Personal Representative of the Estate of Donald Engleman, Deceased, Appellant, v. NEBRASKA PUBLIC POWER DISTRICT, Third-Party Plaintiff, and Floyd Engleman, Third-Party Defendant, Appellees.

Nos. 86-580, 86-581 and 86-582.

Supreme Court of Nebraska.

June 17, 1988.

Syllabus by the Court

1. Motions to Dismiss. In sustaining a motion to dismiss, the trial court resolves the controversy as a matter of law and may do so only when the facts are such that reasonable minds can draw but one conclusion.

2. Motions to Dismiss. In considering the evidence for the purpose of ruling on a motion to dismiss, the party against whom the motion is made is entitled to have every controverted fact resolved in his or her favor and to have the benefit of every inference which can reasonably be drawn from the evidence; if there is any evidence in favor of the party against whom the motion is made, the case may not be decided as a matter of law.

3. Public Utilities: Electricity: Negligence. A power company engaged in the transmission of electricity is required to exercise reasonable care in the construction and maintenance of its lines.

4. Public Utilities: Electricity: Negligence. The degree of care a power company must exercise varies with the circumstances, but it must be commensurate with the dangers involved, and where wires are designed to carry electricity of high voltage, the law imposes the duty to exercise the utmost care and prudence consistent with the practical operation of the power company's business to avoid injury to persons and property. However, power companies are not insurers and are not liable for damages in the absence of negligence.

5. Public Utilities: Electricity: Negligence. The principal basis for determining the liability of a power company for injuries resulting from contact between its wires and a movable machine is the foreseeability of a situation's arising which might lead to such injuries. Where circumstances are such that the probability of danger to persons having the right to be near an electrical line is reasonably foreseeable, power companies may be held liable for injury or death resulting from contact between the powerline and a movable machine.

6. Public Utilities: Negligence. Power companies must anticipate and guard against events which may reasonably be expected to occur, and the failure to do so is negligence.

7. Negligence: Words and Phrases. Contributory negligence is conduct for which the plaintiff is responsible, amounting to a breach of the duty imposed upon persons to protect themselves from injury and which, concurring with actionable negligence on the part of the defendant, is a proximate cause of injury.

8. Political Subdivisions Tort Claims Act: Appeal and Error. Upon review in the Supreme Court, the findings of fact of the trial court in a proceeding under the Political Subdivisions Tort Claims Act, Neb.Rev.Stat. §§ 23-2401 et seq. (Reissue 1983), will not be disturbed unless they are clearly wrong.

9. Negligence: Words and Phrases. One who is capable of understanding and discretion but who fails to exercise ordinary care and prudence to avoid defects and dangers which are open and obvious is negligent or contributorily negligent.

10. Negligence: Words and Phrases. To constitute want of due care on the plaintiff's part, it is not necessary that he or she have anticipated the exact risk which occurred or that the peril was a deadly one; it is sufficient that the plaintiff knew or should have known that substantial injury was likely to result from his or her act.

11. Public Utilities: Electricity: Negligence. One who has notice of a dangerous condition of a wire or other electrical appliance and voluntarily or recklessly brings himself or herself into contact with it, as by touching it with conductors of electricity, is guilty of negligence and cannot hold the power company liable for the resulting injury, and this is true even of an adult who is wholly unskilled in the handling of electricity.

12. Trial: Witnesses: Pretrial Procedure. The trial court, under proper circumstances, has discretionary power to exclude the testimony of a witness whose identity is deliberately withheld in discovery.

Robert D. Kinsey, Jr., and William W. Mickle II of Nelson & Harding, Lincoln, for appellants Ruth Engleman and Kenton Schaub.

James R. Hancock of Hancock & Denton, P.C., Scottsbluff, for appellant Lynn Engleman.

Francis L. Winner of Winner, Nichols, Douglas, Kelly and Arfmann, Scottsbluff, for appellee Nebraska Public Power Dist.

Leland K. Kovarik of Holtorf, Kovarik, Nuttleman, Ellison, Mathis & Javoronok, P.C., Gering, for appellee Floyd Engleman.

HASTINGS, C.J., CAPORALE, GRANT, and FAHRNBRUCH, JJ., and CHEUVRONT, District Judge.

FAHRNBRUCH, Justice.

Plaintiffs in these three consolidated cases appeal the trial court's dismissal of their claims for damages arising out of the death of one man and injuries to two others when the grain auger they were moving came in contact with a 7,200-volt powerline. We affirm.

Donald Engleman was killed and Kenton D. Schaub and Lynn Engleman were injured in the accident on the Floyd Engleman farm near Mitchell, Nebraska. Floyd Engleman is the father of Lynn Engleman and younger brother of Donald Engleman, whose suit was brought by his wife, Ruth Engleman, as personal representative of Donald's estate. Schaub was a friend of the Englemans. Hereafter, for clarity, the Englemans will be referred to by their first names.

The powerline was installed, owned, and maintained by the defendant Nebraska Public Power District (NPPD). In the petitions, each plaintiff alleged that NPPD was negligent (1) in failing to warn the plaintiffs of the dangers incident to contacting a high-voltage powerline, (2) in failing to provide safe electrical current to the Engleman farm by use of insulated overhead conductors or by use of underground conductors, and (3) in its placement and maintenance of the high-voltage line on the Engleman farm. Schaub and Donald also alleged that NPPD was negligent in failing to provide low-voltage conductors to the farm rather than the high-voltage line.

In its answers, NPPD denied liability and alleged that the death and injuries were caused by the negligence of the decedent, the injured parties, and Floyd, whom NPPD named a third-party defendant. NPPD claimed that the decedent and injured men were contributorily negligent by not cranking down the auger, thereby permitting the auger to come into contact with a powerline, and by failing to move the auger via a safe route. NPPD also claimed that the plaintiffs assumed the risk of injury or death when they pushed the auger into the wire, but that issue is not before this court.

After the plaintiffs adduced evidence and rested, the trial court directed verdicts in favor of the defendants, NPPD and Floyd, and dismissed the plaintiffs' petitions.

Originally, the plaintiffs filed their claims with the defendant NPPD under the Political Subdivisions Tort Claims Act, Neb.Rev.Stat. §§ 23-2401 et seq. (Reissue 1983). The claims were denied. The plaintiffs then filed their cases in the Scotts Bluff County District Court.

The appeals for Donald and Schaub assign five errors, which may be summarized as the district court's erring in directing verdicts for the defendants and in prohibiting Dr. William Hanna from testifying as an expert witness. Lynn adopted the other two plaintiffs' assignments of error and added others which, when narrowed, claim the district court failed to determine the degree of defendant NPPD's negligence as compared to the plaintiff's negligence.

At the time of the accident, 7,200 volts of power were supplied to the Engleman farm by lines from a pole near the farmstead's east boundary. The lines connected with a transformer on a pole in the center of the farmstead. From there, lower voltage power was distributed to the home, a shop/garage, a scale house, a stock handler, and a feed and storage building. The 7,200-volt line was installed on the Engleman farm in October 1978. Before that, the farm was served by a 220-volt line.

On the morning of October 16, 1983, Donald and Schaub went into Sweet Alice's cafe, which is located between Gering and Scottsbluff, Nebraska. Floyd and his wife were eating breakfast there. Floyd invited Donald to help him process cattle. Shortly thereafter, Floyd and his wife returned to their farm and began processing their cattle. Donald arrived about a half hour later and helped transport the cattle, after they were processed, to a pen.

While Donald was transporting the cattle, two or three trucks arrived and corn was dumped on the ground, since Floyd's grain bins were full. Floyd asked Donald if he would help move a grain auger so the corn could be piled in the front yard of the farmstead. The upper end of the 60-foot auger was in a circular grain bin. The auger's lower end was on a concrete slab near the bin.

Meanwhile, Schaub arrived at the farm and overheard the conversation about moving the auger. He attempted to disengage its power take-off attachment from a tractor but was unable to separate the auger and tractor. He did, however, crank up the auger so its upper end would clear the top of the grain bin.

Floyd disengaged the power take-off and swung the lower end of the auger around. Donald suggested the auger be moved with the tractor. Floyd said it would be quicker to move the auger by hand. Donald moved the tractor away from the auger. Lynn, although he farmed elsewhere, lived with his parents. Lynn was talking to Schaub when Floyd said: "Let's move the auger." Lynn positioned...