Frederick's Adm'R v. Kentucky Utilities Co.

• Decision Date: 16 December 1938
• Citation: 276 Ky. 13
• Parties: Frederick's Adm'r v. Kentucky Utilities Co.
• Court: United States State Supreme Court — District of Kentucky

Page 13

276 Ky. 13

Frederick's Adm'r v. Kentucky Utilities Co.

Court of Appeals of Kentucky.

December 16, 1938.

1. Electricity. — The handlers of and dealers in electricity are required to exercise the highest degree of care to protect persons coming in contact therewith against injuries, but they are not guarantors against consequences of injuries sustained under all circumstances.

2. Electricity. — Perfect insulation of wires charged with a high voltage of electricity, at places where persons have a right to go for business or pleasure, is an element of the degree of care required of one engaged in the business of transmitting electricity, but one so engaged is not required to insulate wires at points where no one can reasonably be expected to come in contact with them.

3. Negligence. — One is bound to anticipate only the reasonable and natural consequences of his conduct and is not required to guard against that which a reasonably prudent person under the circumstances would not anticipate as likely to happen.

4. Electricity. — A utilities company was not liable for death from electrocution of 17-year-old farmhand who, merely for purpose of seeing what would happen, and not in connection with his employment, voluntarily threw a loose wire across high-power transmission line suspended 20 feet above the ground, notwithstanding that wires were alleged to be insufficiently insulated, that no warning signs were furnished, and that wires were allegedly too close to the ground.

5. Electricity. — A high-power transmission line suspended 20 feet above the ground between steel towers, with no enticing structure by which a youthful trespasser could bring himself in connection with the wires, did not constitute an "attractive nuisance" such as would warrant recovery from utilities company on such theory for death of 17-year-old farmhand who was electrocuted when, merely for purpose of seeing what would happen, and not in connection with his employment, he voluntarily threw a loose wire across transmission line.

Appeal from Webster Circuit Court.

WITHERS & LISMAN for appellant.

GORDON, LAURENT, OGDEN & GALPHIN for appellee.

OPINION OF THE COURT BY JUDGE THOMAS.

Affirming.

Appellant and plaintiff below, as administrator of his decedent, filed this ordinary action in the Webster circuit court against appellee and defendant below, Kentucky Utilities Company, seeking to recover judgment against it for $40,600 alleged damages to the estate of plaintiff's decedent, resulting from his death and which plaintiff in his petition averred was produced by the negligence of defendant. The court sustained a demurrer to each of the two paragraphs of the petition, and plaintiff declined to plead further, whereupon his petition was dismissed, and from that judgment he prosecutes this appeal.

The substance of the material facts averred in the petition are: That defendant constructed, owns and operates an electric transmission line traversing portions of Webster county and crossing the farm of one of its citizens, Lem Clayton, from whom defendant obtained an easement for that purpose in 1928; that the line consists of several large wires supported by metal towers about 750 feet apart and about 35 feet high and built of steel uprights placed in a square about 20 feet apart at the base, and coming near a point at the top. At and for a distance of four or five feet below the top — are metal cross bars which support the transmission wires and the lowest wire at the tower is 30 feet from the ground; but, according to the averments of the petition, it sags at the lowest point between the towers to within about 20 feet from the ground. All of the wires carry a high voltage of electricity which is carried from the place of manufacture to the place of consumption, where the higher transmitted current or voltage is reduced in quantity and distributed to consumers.

On November 20, 1936, decedent, Clifton Frederick, and one Ernest Mitchell were gathering corn for Mr. Clayton in the field crossed by defendant's transmission line. They found somewhere in the field some loose wire and Mitchell procured a piece of it and threw it over the lower transmission wire — saying at the time and in the presence of decedent that he did so for the purpose of seeing "what would happen." He released the wire that he threw from his hand and neither end of it came to the ground, thereby forming no ground connection and nothing happened. Decedent, who was 17 years of age, then stated that he would perform a like experiment and see if he could make something happen. However, in throwing his wire across the lower wire of the transmission line he did not release the end of the wire he was holding, but continued to grip it, thereby producing a grounding of the wire through his body and causing a large voltage of electricity to pass through it, later resulting in his death.

The petition states the facts as so briefly related by us, but with greater elaboration, embodying charges of negligence on the part of the defendant in not having its wires sufficiently insulated to protect against such a catastrophe as happened to plaintiff's decedent, even against the intervening cause that produced it; that no informative warning signs, or a sufficiency thereof, of the danger of coming in contact with the wires were provided or furnished; that the wire was permitted to remain too near to the ground, and that it should have been constructed and maintained at a greater height. Other facts which might or might not constitute negligence toward one coming in contact with the uninsulated wires in circumstances creating a duty of defendant to anticipate and guard against were also averred. The learned trial judge concluded that defendant was under no duty to anticipate or guard against injuries that might happen in the circumstances described, and that, since negligence consists in the failure to perform a duty to the one injured thereby, the petition failed to charge a cause of action for the recovery of damages sustained by the estate of decedent.

In brief of counsel for appellant much research is shown and many cases are cited sustaining the well recognized principle that handlers of and dealers in electricity are required to exercise the highest degree of care to protect persons coming in contact therewith against injuries, since the substance in which they deal is of a highly dangerous nature and is both hidden and secreted so as not to be observable or otherwise detectable by the five senses. However, counsel cite no case holding that those engaged in the making or distribution of...