Graves v. Interstate Power Co.
| Decision Date | 06 July 1920 |
| Docket Number | 31920 |
| Citation | 178 N.W. 376,189 Iowa 227 |
| Parties | W. R. GRAVES, Administrator, Appellee, v. INTERSTATE POWER COMPANY, Appellant |
| Court | Iowa Supreme Court |
Appeal from Allamakee District Court.--W. J. SPRINGER, Judge.
DEFENDANT appeals from a judgment upon the verdict of a jury. The material facts are fully stated in the opinion.
Affirmed.
Dawley Jordan & Dawley, D. J. Murphy, and J. H. Trewin, for appellant.
Wm. S Hart and H. E. Taylor, for appellee.
The Upper Iowa Power Company was granted permission by the board of supervisors of Allamakee County, in 1911, to erect and maintain poles and wires in the public highway, for the purpose of conducting electricity for heat, light, and power purposes from Waukon to Lansing; and, in 1913, the defendant company succeeded to the ownership thereof, together with the equipment, franchises, etc., of said company.
The said transmission line was constructed in front of the residence of George Gramlich. At this point, the highway curves slightly away from said residence, in front of which, on the inside and near the fence, are two cottonwood trees. Defendant's poles, which are 110 feet apart, are set so that at least one wire extends a few inches over the fence and across the Gramlich premises. The power line consists of three No. 6 copper wires, two of which are attached to a wooden crossbeam in the usual manner, about 28 inches in length, fastened securely to a cedar pole. The top of the pole extends above the crossbeam, and two of the wires are strung about 14 inches from the pole on either side. The third wire is strung about 24 inches above, near the top of the pole, and directly between the two lower wires. The wires were not covered with any insulating substance whatever, and carried a current of 13,200 volts.
On or about the 17th day of October, 1913, a son of George Gramlich's, a few months past 15 years of age, climbed one of the trees through which the high tension wires passed, and in some way came in contact therewith, and was killed. The tree was on the Gramlich premises, about 18 inches from the fence and about 16 feet from the corner of the porch, and was about 12 inches in diameter at the stump. The distance from the ground to the first limb of the tree was 10 feet and 3 inches, and to the second limb, 12 feet and 1 inch. The distance from the surface of the ground to the lower wires was 19 feet and 10 inches. 17 feet and 6 inches from the ground, the tree forked, one limb originally extending over the fence into the highway; the other in the opposite direction. Some time after the transmission line was erected, one of the wires coming in contact with the limb extending toward the highway finally burned it off, and, later, one of the employees of defendant sawed off the stump about 3 1/2 or 4 feet from the crotch of the tree. One wire, at the time of the accident, was about a foot above the stump, and 2 1/2 or 3 inches nearer the pole. The crotch in the tree was 3 1/2 to 4 feet below what we will call the inside wire, the one nearest to the tree.
Just how the accident, which occurred between 1 and 2 o'clock in the afternoon, happened, is not known. The mother testified that her son told her he was going up in the tree to get a squirrel; that she later saw him in the tree, and, a few minutes thereafter, her attention was attracted by an unusual noise; that she went to the door, and saw the boy lying in the crotch of the tree, with one foot over the wire, his hands and the other foot hanging down. She further testified that she saw a squirrel about the premises that morning, and that the children chased it, before going to school, and that she saw one on the windmill which stood near; that she had seen and knew of but one squirrel on the premises. Other witnesses testified to the removal of the body, and the condition of his hands and feet. Both of the latter were very severely burned. The burn on one hand was somewhat more extensive than that on the other. He was evidently instantly killed. The day was warm and cloudy. The tree was probably damp, as there had been a heavy fog that morning. The jury returned a verdict of $ 9,500. This was reduced by the court, with the acquiescence of plaintiff, to $ 8,000, for which sum judgment was entered.
I. The court overruled a motion by counsel for defendant, based upon several grounds, at the close of the evidence, for a directed verdict. It is now urged by them that this ruling was erroneous, for two reasons: (a) That no negligence upon the part of defendant was shown; and (b) that it appeared affirmatively from the evidence that the injury was the result of the contributory negligence of deceased. The court instructed the jury that it was the duty of the defendant, in the construction and maintenance of its transmission lines, to use such care as would be reasonably commensurate with the danger involved, and that, to charge it with negligence in maintaining its wires in the condition and position shown where the accident happened, the jury must find that the defendant was bound to anticipate that boys of the age of deceased were likely to climb into said tree and, without negligence on their part, come in contact with said wires. The court further instructed the jury that deceased had a right, at any time he saw fit, to climb the tree in question, and that he could not be charged with contributory negligence, so as to defeat plaintiff's right of recovery, by the mere fact that he climbed the tree; and that it was for the jury to say whether or not, at the time he was injured, he was in the exercise of due care, and free from contributory negligence. Several instructions were requested by counsel for defendant, but no complaint is made in this court because of the refusal of the court to give same.
Section 1527-c of the 1913 Supplement to the Code requires that electric light companies shall use for transmission lines
No claim is made by counsel for appellant that the wires in question were insulated, or that other protection was provided against injury to a person coming in contact therewith at the point where the boy was killed. On the contrary, we are confronted with the argument that insulation of the wires by wrapping or covering so as to prevent injury is entirely impracticable and impossible. We have not had occasion to define the words "properly insulated," as employed in Section 1527-c, Supplement to the Code; but it makes no difference, under the facts in this case, whether the requirement thereof is that all high-tension wires be covered or wrapped with an insulating substance, or that insulation or protection be provided only at points where those engaged in the construction, maintenance, and operation of electric lines conveying a deadly current of electricity, should, as reasonably prudent and cautious persons, know or anticipate that others, in the exercise of their lawful rights, are or may be likely to come in contact therewith, and be injured.
The tree in question was standing upon the premises of deceased's father, the wire with which he came in contact extending over and across said premises. It is not claimed that defendant had a right, under its grant, to place the wire upon or across said premises, or that it was placed there with the consent of the owner. To this extent defendant was a trespasser. It is not uncommon for the owner of shade trees situated as is the one in question to climb into the upper branches, to remove broken branches or trim the tree; and it appears that deceased and his two younger bro...
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