Foote v. Scott-New Madrid-Mississippi Elec. Co-op.

• Citation: 359 S.W.2d 40
• Decision Date: 10 July 1962
• Docket Number: SCOTT-NEW,MADRID-MISSISSIPPI,No. 8004,8004
• Parties: George T. FOOTE, Jr., and Lila P. Foote, Plaintiffs-Respondents, v.ELECTRIC COOPERATIVE, a corporation, Defendant-Appellant.
• Court: Court of Appeal of Missouri (US)

Page 40

359 S.W.2d 40

George T. FOOTE, Jr., and Lila P. Foote, Plaintiffs-Respondents, v. SCOTT-NEW MADRID-MISSISSIPPI ELECTRIC COOPERATIVE, a corporation, Defendant-Appellant.

No. 8004.

Springfield Court of Appeals, Missouri.

July 10, 1962.

Motions for Rehearing or to Transfer Overruled July 31, 1962.

Blanton & Blanton, Sikeston, for defendant-appellant.

Frederick E. Steck, Sikeston, for plaintiffs-respondents.

STONE, Judge.

For the alleged wrongful death of their unmarried minor son, George T. Foote, III (hereinafter called George), his parents, as plaintiffs, sued Scott-New Madrid-Mississippi Electric Cooperative, as defendant, and upon trial obtained a jury verdict for $8,000. From the judgment entered thereon, defendant appeals. Its primary complaint that the trial court erred in overruling defendant's motion for a directed verdict at the close of all of the evidence requires a factual review, in which we should and do give appropriate recognition to the basic principle that, in determining whether a submissible case was made, we must consider the evidence in the light most favorable to plaintiffs, must accord to them the benefit of all supporting inferences fairly and reasonably deducible from the evidence, and must disregard defendant's evidence except insofar as it may aid plaintiffs' case. Daniels v. Smith, Mo., 323 S.W.2d 705, 706(2); Phillips v. Stockman, Mo.App., 351 S.W.2d 464, 471(7); Hildreth v. Key, Mo.App., 341 S.W.2d 601, 604(2)

When death by electrocution suddenly struck George in the front yard of his farm home on the afternoon of Sunday, January 3, 1960, he was exactly sixteen years seven months of age, approximately five feet nine inches in height, and about 165 to 175 pounds in weight. He had completed his freshman year in the Sikeston High School and had quit voluntarily during his sophomore year on October 29, 1959. Both his classmate, Dewey Holmes, and his father said that George was a boy of normal intelligence, and several farmer witnesses supported plaintiffs' testimony that George was 'all the way around a good hand on the farm,' had operated tractors and mechanized farm machinery not only on plaintiffs' farm but also for hire on neighboring farms, and in short could do and had done 'a man's work.'

The farm home, in which George lived with his parents and other members of the family, was situate on the west side of a graveled north-and-south public country road near Sikeston. Running parallel with, near to, but inside (i. e., east of) the west right of way line of the public road was defendant's north-and-south single phase, 7200 volt, electric transmission line carried overhead on wooden poles. There were two wires in this transmission line, towit, (1) the energized or 'hot' wire carrying 7200 volts which was attached to the top of the poles and (as stipulated by the parties) was 25 1/2 feet above the ground, and (2) the unenergized neutral wire carrying no voltage which was attached to the poles 4 feet below the energized wire and thus was 21 1/2 feet above the ground. Several feet below the unenergized neutral wire, crossarms carrying two telephone wires were attached to the pole line. The only wire figuring in the tragedy under consideration was the energized wire 25 1/2 feet above the ground which was a bare, uninsulated copperweld wire. Although we recognize that the National Electrical Safety Code fixes and promulgates only minimum standards, compliance with which may not, in all circumstances, establish freedom from negligence [Gladden v. Missouri Public Service Co., Mo., 277 S.W.2d 510, 515], it was in evidence that the Safety Code required a minimum clearance of 18 feet for 7200 volt rural lines. Admittedly, there were no warning signs on or about the poles, and nothing indicated the voltage transmitted over the line.

Plaintiffs' witnesses variously estimated that the front of the Foote farm home was from 50 to 100 feet west of defendant's north-and-south transmission line. Three medium-sized shade trees (at that season of the year without foliage) stood in the front yard between plaintiffs' home and the transmission line, but the undisputed evidence clearly established that none of the wires ran through or near any of the trees and that the wires were in the open and plainly visible from the ground. With respect to the appearance of the electric wires, George's father testified that 'they were up there in the air; you can't see what they look like too much'--'they are of a black color, grayish black color.' When asked whether he could determine from the ground if the wires were insulated, he first answered that 'I couldn't say because I really don't know, but they appear to be insulated.' However, he shortly explained that, if 'you just set down there and eyeballed them for quite a while, you probably could tell they wasn't insulated.' George's mother stated that she could not tell whether the wires were insulated, and that she did not know their color 'but they look dark.' Plaintiffs' witness, Dewey Holmes, said that these wires were 'the same color as any ordinary wire, sort of a dull looking color.' In any event, they had been in the same location since plaintiffs had built the Foote farm home almost sixteen years prior to the tragedy in suit; and during the same period the Foote family had been supplied with electric service from this transmission line and had operated in their home numerous electric appliances which, in our materialistic abundance, we have come to regard (in the words of George's mother) as 'common things like a washing machine, a deep freeze and an ice box and an iron and television.'

Early on the fateful Sunday afternoon of George's accident, Dewey Holmes, a neighbor youth also sixteen years of age, came to the Foote home in a pickup truck which he parked, headed south, on the west side of the road in front of the house. Dewey described the day as 'pretty warm' with 'a pretty strong wind blowing out of the west and a little bit southwest'--it was 'gusty.' After the two youths had passed some time in innocent pursuits such as walking around the barn and hunting Indian arrowheads in a sandhill, they found some copper wire and two tin cans in a trash barrel, tied the ends of the wire through holes punched in the bottom of the cans, and thus 'made a sort of a telephone thing' to talk through. We observe parenthetically that Gary, George's younger brother, testified that, before this copper wire had been thrown in the trash barrel, George had kept it in his room for use in 'something for the school bell' which, with the aid of batteries, he had intended to make. Returning to the activities of the tragic Sunday afternoon, plaintiffs' evidence was that George and Dewey talked over their improvised can and copper wire telephone line 'for a little while in the back of the (Foote) house and then . . . went around (to) the front' where they simply stood and talked for a few minutes without using the 'telephone.' Then Dewey got into the parked truck, put one end of the copper wire with a can on it through the open righthand or west window of the truck, rolled 'the window up on the wire and talked through it like that for a little while' until the wire broke right at the truck window.

This left Dewey with only an inch or so of wire inside the window, and George had the remainder of the wife (no one estimated its length) with the can on his end of it. George began to swing the can 'in a circle,' holding the copper wire in his left hand about ten inches (as Gary thought) or about eighteen inches (as Dewey estimated) from the can. As he swung the can, George was facing north and was standing in (but near the edge of) his front yard at a point some four or five feet west of the overhead transmission line and about twenty feet south of the nearest pole. The only two eyewitnesses, Gary Foote and Dewey Holmes, agreed that, while thus swinging the can around, George received no electrical shock and the can was not close to the energized top wire. Suddenly and without saying anything, George 'let go of it' (as Gary said) or 'he either let go of it or it slipped out of his hand--I don't know' (as Dewey related it). In either event, the can went over the energized top wire, and the deadly current, always seeking a route to the ground, found it through the copper wire and George's body. He turned around and immediately fell on his stomach to the south. The only thing the stricken youth said before expiring was the warning 'Dewey, don't touch me; I have been electroucted.'

Many distinguished jurists have, over the years, written with feeling and fervor concerning the force known as electricity, vividly and vigorously but aptly and appropriately characterizing it in nature and effect as dangerous and deadly, invisible and insidious, lurking and lethal, mysterious and murderous, odorless and ominous, and sightless and sinister. With electricity being all of that and more to those unschooled and untrained in its properties and behavior, certainly it is both fitting and necessary that those generating, transmitting or distributing such force should be obligated by law, as they are, to exercise care commensurate with the nature and effect of that force and the danger and hazard incident thereto. Gellert v. Missouri Service Co., Mo., 221 S.W.2d 177, 179; 29 C.J.S. Electricity Sec. 39, p. 575; 18 Am.Jur., Electricity, Sec. 48, loc. cit. 444. But, although the judicial declarations in this jurisdiction have firmly fixed and uniformly adhered to the utmost or highest degree of care as the required standard, it is perfectly plain that here, ¹ as elsewhere [29 C.J.S. Electricity Sec. 38, p. 573], an electric company is not an insurer of the safety of persons and property, and that its liability vel non in a given situation is determinable upon principles of negligence.

Even as in other areas '(m)ost duties, imposed by the law of torts, arise out of...