Gault v. Monongahela Power Co.

• Decision Date: 13 January 1976
• Docket Number: No. 13562,13562
• Citation: 223 S.E.2d 421,159 W.Va. 318
• Court: West Virginia Supreme Court
• Parties: Donald M. GAULT et al. v. The MONONGAHELA POWER COMPANY, etc.

Page 421

223 S.E.2d 421

159 W.Va. 318

Donald M. GAULT et al. v. The MONONGAHELA POWER COMPANY, etc.

No. 13562.

Supreme Court of Appeals of West Virginia.

Jan. 13, 1976.

Syllabus by the Court

1. An electric company which operates and maintains wires charged with dangerous voltage of electricity, though not insurers against all injury caused thereby, is required to exercise a degree of care, commensurate with the dangers reasonably foreseeable.

2. 'In the trial of negligence cases, the better practice is to withhold any monetary figure from the jury's consideration which might be suggestive of amounts not proven in evidence. Recognizing, however, the proper function of the jury and, also, that damage awards in personal injury actions are necessarily somewhat indeterminate in character and amount, this Court, while not approving exposition of Ad damnum clauses in instructions to the jury, does not reverse a case for this impropriety alone.' Point 6, Syllabus, Jordan v. Bero, W.Va., 210 S.E.2d 618 (1974).

3. A declaration of an intention to return to work is admissible in evidence to prove that the declarent actually had such intention.

4. A plaintiff has a right to be compensated for impairment of his physical capacity and impairment of his ability to earn, regardless of whether or not he intended to work.

5. A jury verdict will not be set aside as excessive unless it is not supported by the evidence or is such that the amount thereof indicates that the jury was influenced by passion, partiality, prejudice or corruption, or entertained a mistaken view of the case.

6. 'The action of the trial court in setting aside a verdict for the plaintiff and awarding the defendant a new trial will be reversed by this Court there it appears that the case, as whole, was fairly tried and no error prejudicial to the defendant was committed therein.' Point 7, syllabus, Browder v. County Court of Webster County, 145 W.Va. 696, 116 S.E.2d 867 (1960).

Earley, Bailey & Pfalzgraf, William R. Pfalzgraf, Parkersburg, for appellants.

McDougle, Davis, Handlan & Davis, Fred L. Davis, Parkersburg, for appellee.

CAPLAN, Justice:

This is an appeal by plaintiffs, Donald M. Gault and Irene Gault, his wife, from a final order of the Circuit Court of Pleasants County which was entered in an action instituted therein by the appellants against the Monongahela Power Company, a corporation. In that action the plaintiffs sought recovery of damages for injuries which they alleged were caused to Donald M. Gault by reason of the negligence of the said power company. Upon trial of the above action the jury returned a verdict in favor of Donald M. Gault in the sum of $67,500.00 and a verdict in favor of plaintiff Irene Gault in the amount of $10,000.00. Thereupon the defendant power company filed its motion to set aside the verdicts and award a new trial, assigning twenty grounds therefor. The court subsequently entered its order sustaining the motion and awarded a new trial. The trial court rendered no opinion and stated no reason for its action. It is from that order that this appeal is prosecuted.

The ultimate issue presented upon this appeal is whether the court erred in granting the 'Motion of the Defendant to set aside the Verdicts and Award the Defendant a New Trial.'

The record reveals the following factual situation which gave rise to this action. In the late afternoon of May 31, 1971, the plaintiff, Donald M. Gault, after finishing his day's labor on his farm discovered that his horse was missing. He decided to look for it and had one of his helpers drive him in a tractor up to the crest of a hill which was located on his farm. The area in which he left the tractor was approximately 1,500 feet above his home and some 800 feet from a road. According to the testimony of this plaintiff the area was overgrown with brush and he took an axe with him in the event he found his horse caught up in the underbrush.

The plaintiff had just begun his search when he head came in contact with a low hung high voltage uninsulated wire which was a part of the transmission line owned and operated by the Monongahela Power Company. The evidence reveals that the slack in the wire caused it to hang from four to six feet from the ground. The shock received from this contact rendered the plaintiff unconscious. Upon regaining his consciousness he observed the body of the horse for which he had been searching lying in the general area. The horse had been killed by making contact with the same wire that injured the plaintiff. The plaintiff testified that he felt sick but managed to walk back to his home where he wife and son insisted that he go to the emergency room of the hospital. He was later taken to St. Joseph Hospital in Parkersburg where, by reason of his injuries, he remained as a patient for eighty-two days. Thereafter he was required to be treated by his doctor from August, 1971 through September, 1973, and, in fact was still under the doctor's care at the time of the trial. In addition, he was again hospitalized from June 24, 1973 to July 15, 1973. His hospitalization and medical bills amounted to a figure in excess of $7,500.00. At the trial his doctor testified that further skin grafting would be necessary and that he would not be able to return to work for an additional eighteen to twenty-four months. A plastic surgeon, called by the power company, testified through deposition that following further surgery the plaintiff would enjoy complete recovery after three or four months. Other than this difference of opinion, the facts related are basically undisputed.

In deciding the propriety of the trial court's action in setting aside the jury's verdicts, two basic areas must be considered. First, we must decide whether the evidence adduced at the trial was sufficient to support a jury finding of liability on the part of the defendant. Second, were the verdicts so excessive as to require them to be set aside?

Preliminary to the treatment of the two above mentioned basic areas, it is necessary to consider the defendant's assertion that because the trial court, upon setting aside the verdicts, awarded a new trial, its action is entitled to peculiar respect and should not be disturbed on appeal. The defendant cites Hagger v. Monongahela Transport Company, 106 W.Va. 522, 146 S.E. 49 (1928) in support of the above assertion.

While we have no quarrel with the Haggar decision, we hasten to point out a significant distinction between that case and the one under consideration. The Haggar case involved a collision between a bus and an automobile. There was much conflicting testimony as to the manner in which the accident occurred which led the Court to indicate that the evidence in support of the verdict may be inconclusive. The Court said 'his (plaintiff) case is not so plain and free from doubt that we can say that the ruling of the circuit court (in setting aside the verdict for the plaintiff) is a wrongful invasion of the province of the jury.' In the instant case there is no substantial conflict in the evidence. As hereinafter noted the plaintiff's case as to the power company's negligence is clearly supported by the evidence and the ruling of the circuit court in setting aside the verdict, on the question of negligence, constitutes a wrongful invasion of the province of the jury.

So far as the question of liability of the defendant is concerned, we are of the firm opinion that the evidence clearly supports the finding of the jury and that, in that respect, the trial court was plainly wrong in setting aside such verdict.

The trial court having failed to note any reason for setting aside the jury's verdict, we have no way to know whether such action related to the question of liability, excessiveness of the verdicts, error in relation to instructions or some other reason not readily evident. It is necessary, therefore, to review each of the aforementioned questions.

The facts relating to the manner in which the plaintiff was injured are not materially disputed. Plaintiff Donald Gault was injured when he came in contact with an uninsulated, high voltage electric line of the defendant which was suspended across the plaintiff's property. In the area where the accident occurred this uninsulated electric line hung only four to six feet from the ground. The evidence reveals that the line had been installed over thirty years ago and was last actually inspected on the ground approximately six years prior to this incident. A private concern hired by the defendant company to spray the foliage along the electric lines right of way performed that function by airplane approximately eleven months before the plaintiff was so injured. Therefore, as revealed by the record, the subject line had not been inspected in any manner for at least eleven months and had not been meaningfully inspected for more than six years.

It has been held repeatedly by this Court that an electric company which operates and maintains wires charged with dangerous voltage of electricity, though not insurers against all injury caused thereby, is required to exercise a degree of care, commensurate with the dangers reasonably foreseeable. Lancaster v. Potomac Edison Company of West Virginia,156 W.Va. ---, 192 S.E.2d 234 (1972); Sutton v. Monongahela Power Co., 151 W.Va. 961, 158 S.E.2d 98 (1967); Johnson v. Monongahela Power Co., 146 W.Va. 900, 123 S.E.2d 81 (1961); Maggard v. Appalachian Power Company, 111 W.Va. 470, 163 S.E. 27 (1932). 'Reasonable care and negligence are relative terms, and the degree of care required in a given case must be commensurate with the dangers to be avoided. In handling so dangerous an agency as electricity a high degree of care is not unreasonable.' Point 3, Syllabus, Morrison v. Appalachian Power Co., 75 W.Va. 608, 84 S.E. 506 (1915).

The duty of care owed by an electric company in the maintenance of its high voltage electric lines, as noted above,...