Green River Rural Elec. Co-op. Corp. v. Blandford

• Court: Kentucky Court of Appeals
• Writing for the Court: STANLEY, Commissioner.
• Citation: Green River Rural Elec. Co-op. Corp. v. Blandford, 306 Ky. 125, 206 S.W.2d 475 (Ky. Ct. App. 1947)
• Decision Date: 05 December 1947
• Parties: GREEN RIVER RURAL ELECTRIC CO-OP. CORPORATION v. BLANDFORD.

206 S.W.2d 475

306 Ky. 125

GREEN RIVER RURAL ELECTRIC CO-OP. CORPORATION v. BLANDFORD.

Court of Appeals of Kentucky

December 5, 1947

Appeal from Circuit Court, Daviess County; Sidney B. Neal, Judge.

Action by Vird A. Blandford against Green River Rural Electric Cooperative Corporation to recover for injuries sustained as a result of contact with defendant's high-tension electric transmission line. Verdict and judgment for plaintiff, and defendant appeals.

Judgment affirmed.

Wm. Marshall Bullitt, Eugene B. Cochran, and Bullitt & Middleton, all of Louisville, for appellant.

Beckham A. Robertson, Clarence Bartlett, and Woodward, Dawson &amp Bartlett, all of Owensboro, and Ernest Woodward, of Louisville, for appellee.

STANLEY Commissioner.

The appellee, Vird A. Blandford, was seriously injured by contact with appellant's high-tension electric line on December 18, 1945. The amount of the verdict, $15,790, is not questioned as excessive. The primary questions are negligence and contributory negligence.

At the point of the accident the transmission line along the Owensboro and Calhoun highway ran a short way over the land of the appellee's brother, Joe Blandford. There is doubt as to an easement, the appellee claiming the company was a trespasser. The point is not of material importance here. Cf. Kentucky Utilities Company v. Woodrum's Adm'r, 224 Ky. 33, 5 S.W.2d 283, 57 A.L.R. 1054. The wires ran through the branches of a locust tree over a well near the road, in the yard, 140 feet from the dwelling house. It had been placed there about eight years before the accident. Joe Blandford had recently come into possession of the property and built a concrete block house over the well about five by six feet and seven feet high. He had installed an electric pump, the current coming from his dwelling. The high-tension line through the branches of the tree was directly over the well house. One wire, carrying 6,900, volts, was 27 1/2 feet above the ground, and another called the 'dead wire' was about 23 1/2 feet.

At their brother's request, the appellee, Vird Blandford and Bernard Blandford were engaged in taking a thirty foot pipe out of the well in order to replace the check valve at the end of it. A board was removed from the top of the well house and Vird, on the inside, lifted the pipe up through the hole in the roof where Bernard held it steady and clamped it until Vird could make another hitch, a foot or so at a time. Just as the bottom of the pipe came out of the well, the top of it either came in contact with an electrically charged branch of the tree or touched the high-tension wire. Vird Blandford was knocked unconscious and suffered severe injuries, including the loss of one of his hands. Bernard was not hurt, apparently because he was wearing gloves and standing on the wooden roof, or perhaps because he did not have hold of the pipe at the instant of contact.

Wet snow was clinging to the branches of the tree. The pipe, of course, was wet s was the well block on which Vird Blandford was standing. There is contradiction of the plaintiff's evidence that the high-tension wire was rubbing small branches of the tree at two places, a defendant's employe saying there were spaces of eighteen inches between. There is also contradiction as to whether the wire had previously been in contact and burned the tree.

Bernard Blandford testified that as the pipe was being drawn out and up over the well house, it touched the limbs of the tree. And electrical engineer told the jury that it was not considered safe electrical engineering to put a high-tension line through the limbs of a tree, or without a clearance of at least twenty feet for trees or buildings. The defendant's construction engineer thought ten feet to be safe. Plaintiff's expert further testified that the wet tree and iron pipe would form a good conductor, and that the closer the pipe came to the wire the more voltage it would receive. In answer to a hypothetical question describing the conditions and the contact with the wet tree or the heavily charged wire by the wet pipe, as claimed by the plaintiff, and relating the incidents of the accident, the witness testified that it could have been caused in that way.

On the other side, and perhaps on stronger evidence, it was proved that the pipe came in direct contact with the live wire, for there was evidence that soon after the accident the pipe was found to be against and slightly welded to the wire. Of course, it may have fallen against it from a limb after the deadly current had gone through and injured Blandford.

There is no dispute as to the high degree of duty on the part of one maintaining a high voltage electric line. About the only thing certainly known about electricity is its highly dangerous character and that the greater the voltage the greater the danger. So the duty as often declared is, in short, to exercise the utmost care to prevent injury, which, however, is but to say that ordinary care in dealing with so dangerous a force is the highest degree when put into practice. Morton's Adm'r v. Kentucky-Tennessee Light & Power Co., 282 Ky. 174, 138 S.W.2d 345, and cases cited therein.

The appellant passes by the evidence that it was negligence to maintain such a highly deadly line touching or even within eighteen inches of the branches of a tree in a man's yard over his well. That such is negligence cannot be doubted. 29 C.J.S., Electricity, § 42, note 61. It rests its case upon the proposition that there was no negligent act which proximately caused the accident, as if the tree and well were not involved. It is claimed that the use of an uninsulated wire for cross-country transmission lines is not negligence, and that prudence does not require that a company maintaining such a line should anticipate that a person will come in contact with it in the manner in which this injured man did, namely, by lifting a 30-foot iron pipe into the air. The appellant relies upon Morton's Adm'r v. Kentucky-Tennessee Light & Power Co., supra. The case supports the proposition in general. But the location of that wire and this one makes a distinction. There the wire was on the company's own right-of-way, running on a level with the top of the truss of a bridge and eleven feet from it. A workman took out a long steel rod from the bridge and extended it to the side so that it came in contact with the wire and electrocuted him. That was in the open country. This wire was in a man's yard, through the branches of a tree, over a well which was being used, and, of course, at a place where people would frequently be. The defendant knew of the well and had recently run a new line for the installation of the electric pump. It is not to be exonerated from liability on the assumption no one would ever touch the branches of the tree or the wire itself, which was suspended so low immediately over the well.

As stated in the opinion in the Morton case, supra, one of the factors to be considered in determining the existence or absence of negligence is reasonable contemplation of contact or injury to a person as a result of the condition created or permitted by the defendant. The test is whether it could have been reasonably foreseen or anticipated as likely to appear, taking into account the company's own past experience and the experience and practice of others in similar conditions. It is not that a particular act, which may have been unusual, could have been apprehended, but whether people would come in dangerous proximity and might be expected to do any reasonable thing while there from which injury would result. To illustrate. In the case of Kentucky Utilities Company v. Black's Adm'x, 244 Ky. 562, 51 S.W.2d 905, it could have been reasonably foreseen that a high-tension wire suspended close to a radio aerial would result in injury to somebody, although perhaps not that a man would be electrocuted by turning on his radio. Here we think it could have been reasonably expected that somebody would get hurt from having a high voltage wire running through the branches of a tree over a well in a man's yard, 27 1/2 feet from the ground and 20 feet from the top of the well house. Anticipation of this or any other particular act is not the test of duty. Kentucky-Tennessee Light & Power Co. v. Priest's Adm'r, 277 Ky. 70, 127 S.W.2d 616 .

The appellant presses the argument that failure to insulate the wire was neither negligence nor proximate cause. We may for the argument agree that standing alone failure to insulate the wire was not negligence per se. But without insulation, the greater the danger and the greater the commensurate duty of care and vigilance. The negligence, as the jury found under instructions about which no complaint is made, was that the defendant had failed 'to exercise the utmost care and skill to so construct, maintain, insulate or protect its wires at the place described in evidence as to make them free from danger to those who might be brought in contact with same while performing such work as could reasonably have been anticipated' and that the plaintiff 'was performing such work as could reasonably have been anticipated by the defendant.'

The real defense is that of proximate cause and contributory negligence, which, in this case, seem to be one and the same thing. There was no independent agency or intervening act of a third person. The point is that raising the pipe was the proximate cause and that the negligence of plaintiff, who had...