Hercules Powder Co. v. DiSabatino

• Decision Date: 07 January 1963
• Citation: 188 A.2d 529,5 Storey 516,55 Del. 516
• Parties: , 55 Del. 516 HERCULES POWDER, COMPANY, a corporation of the State of Delaware, Defendant Below, Appellant, v. Iona M. DISABATINO et al., Plaintiffs Below, Appellees. Iona M. DISABATINO et al., Plaintiffs Below, Appellants, v. HERCULES POWDER COMPANY, a corporation of the State of Delaware, Defendant Below, Appellee.
• Court: Supreme Court of Delaware

Page 529

188 A.2d 529

5 Storey 516, 55 Del. 516

HERCULES POWDER, COMPANY, a corporation of the State of

Delaware, Defendant Below, Appellant, v. Iona M. DISABATINO et al., Plaintiffs Below, Appellees.

Iona M. DISABATINO et al., Plaintiffs Below, Appellants, v. HERCULES POWDER COMPANY, a corporation of the State of

Delaware, Defendant Below, Appellee.

Supreme Court of Delaware.

Jan. 7, 1963.

Reargument Denied Feb. 15, 1963.

Appeal and cross-appeal from interlocutory orders of the Superior Court in and for New Castle County.

Samuel R. Russell and Peter Warren Green, Morford, Young & Conaway, Wilmington, for plaintiffs-below.

David F. Anderson and Richard L. McMahon, Berl, Potter & Anderson, Wilmington, for defendant-below.

WOLCOTT and TERRY, JJ., and SHORT, Vice Chancellor, sitting.

WOLCOTT, Justice (for the majority of the Court).

These are cross-appeals by both plaintiffs and defendant in an action which, after trial, resulted in a hung jury. The defendant, Hercules Powder Company, appeals from two interlocutory orders of the Superior Court, viz., first, the denial of a motion for a directed verdict for the defendant, and, second, the denial of a motion under Superior Court Rule 50(b), Del.C.Ann. for judgment for the defendant.

The cross-appeal was taken by the plaintiffs from various adverse rulings made during the course of the trial. The cross-appeal is supported upon the theory that if a second trial is required, instructions from this Court on the disputed questions would assist the trial court and possibly prevent a future appeal.

The action was commenced by a widow for the death of her husband, and by Massachusetts Bonding and Insurance Co., as partial subrogee, to recover the amounts it will be obliged to pay as compensation under the Delaware Workmen's Compensation Law as the insurer carrier for the decedent's employer.

There is no dispute between the parties as to the facts underlying this controversy. We state them briefly.

Hercules is the owner of an electrical power line on its Experimental Station. This line is charged with 12,000 volts of electricity carried in three uninsulated wires, the lowest of which is approximately 11 feet below the top of the pole. The line consists of a series of wooden poles approximately 60 feet high, making an angle in its course. Pole #104 in the angle is secured by two guys running from the top of the pole to anchors buried in the ground. The power line was constructed in 1952 for Hercules by a contractor in accordance with plans and specifications prepared by Hercules' Engineering Department, which approved and accepted the final installation of the power line.

The power line as designed by Hercules provided for two guys on Pole #104 with two insulators installed in each. One insulator was specified as a wood strain insulator located near the top of the pole, and the second was specified as a porcelain 'Johnny Ball' insulator located further down the guy. As actually installed only an 8-foot wood strain insulator was installed in the guys where they were attached to the pole at the top. The contractor constructing the power line called to the Hercules Engineering Department's attention the variance between the plans and the actual installation. This variance was approved and accepted by Hercules.

In 1957 Hercules entered into an agreement with the Levy Court of New Castle County for the construction of a sanitary sewer across the lands of its Experimental Station. Under the terms of the agreement, Hercules granted the Levy Court an easement for such purpose. The sewer to be installed served the Experimental Station and also contained an extension designed to provide sewer service to land not owned by Hercules. Hercules paid the cost of the sewer servicing its Experimental Station, but paid no part of the cost of the extension of the sewer line.

The Levy Court exhibited to Hercules a plan of the proposed course of the sewer, and at Hercules' request relocated the course of the extention line. The relocation of the extension to the sewer brought it in close proximity to Pole #104 of Hercules' power line. Hercules approved of the relocation of the extension.

The Levy Court contracted with DiSabatino Brothers, Inc., the employer of the decedent, for the installation of the proposed sewer line. On the day of decedent's death he and a fellow workman were operating heavy equipment in connection with installing the extension of the sewer line in the vicinity of Pole #104. As they approached the pole they saw the two guys hanging loose from the top of the pole with the loose ends about ten or fifteen feet from the base of the pole. Saying that he would move the wire out of the way, the decedent grasped the guy wire, took two or three steps and fell dead. It was later determined that he died from electrocution.

There is no direct testimony as to how the guy wire below the wood strain insulator became charged with electricity, but plaintiffs' expert witnesses theorized that the decedent moved the wire in such manner as to cause the wire below the 8-foot insulator to come into contact with the lowest high tension wire, located 11 feet from the top of the pole. Hercules does not dispute this surmise.

From subsequent examination, it appeared that the two guy wires of Pole #104 had been cut with a hack saw leaving their anchors firmly imbedded in the ground and the wires dangling loose from the top of the pole. There is nothing in the record to show who in fact cut the guy wire. It seems clear, however, that the decedent probably did not. It is clear, also, that Hercules did not direct that the wires be cut, and that it had no notice that they had been cut. It is further clear that the wires were probably cut in the morning of the day of the accident, or possibly some time during the preceding day, although there is no direct proof as to this.

Expert witnesses were called by both sides to testify as to the proper standards of installation to be followed in the construction of electric power lines. Hercules' engineer who designed and approved the construction of the line testified that the line as constructed complied with the National Electrical Safety Code with respect to the insulation of guy wires. Hercules also called as an expert the Chief Engineer of Delaware Power & Light Company who testified that the guys were properly insulated and conformed to the practice followed by Delaware Power & Light Company, the local electric utility company.

The plaintiffs called two expert witnesses. These experts testified that in their opinion the installation was unsafe because it did not prevent the energizing of the lower part of the guy wire under all circumstances. These experts agreed that the only guide for such installations in general use was the National Electrical Safety Code, and that it was general practice in such installations to follow the pattern established by utility companies in the area.

All the experts were in agreement that, as installed and attached to their anchors, the guys in question were in no wise dangerous, and could not possibly have become energized. Furthermore, from the testimony of all the experts, it is clear that guys installed as these were do not readily become loosened. In fact, such is a rare event and ordinarily occurs only after some unusual weather conditions.

Initially, we dispose of two questions presented by the two appeals. Plaintiffs argue that error was committed in permitting Hercules to examine the expert witnesses on the basis of the National Electrical Safety Code since that code was inadmissible in evidence as proof of the standard of installation to be followed.

We have no doubt but that safety codes prepared and issued by government agencies are not admissible as independent evidence to prove the truth of the statements or standards contained in them. Annotations, 122 A.L.R. 644, 75 A.L.R.2d 778. But it has long been permissible to ask on direct as well as on cross-examination an expert witness to state the grounds of his opinions and to detail the general data which forms the basis of his opinion. II Wigmore on Evidence, § 562. This is all that was done in the case at bar. All of the experts admitted knowledge of the Safety Code and recognized it as a guide. The Code, itself, was not offered in evidence. We see nothing improper in basing the examination of an expert witness on such a recognized safety code.

Next, Hercules argues that the decedent, at the time he met his death, was a mere licensee, while the plaintiffs contend that he was a business invitee. Upon this basis they urge that Hercules owed different standards of care to the decedent. We think the point to be without much materiality under the facts before us but, in any event, we think the decedent was a person invited or permitted to be on the land of Hercules for a purpose connected with business dealings between Hercules and the Levy Court, of which decedent's employer was an agent. As such, he was a business invitee. Restatement of Torts, § 332.

The basic question in the appeal of Hercules is whether or not under the facts of the case Hercules was negligent in the manner in which its high voltage line was installed, and whether, if negligent, that negligence was the proximate cause of decedent's death. Hercules argues that under the facts it was not negligent but exercised due care in the installation of its high tension line. It argues that the issue of its negligence should not have been submitted to the jury. The plaintiffs, on the other land, argue that it was the duty of Hercules to install guy wires in such fashion that they could under no circumstances ever become charged with electricity. This, it is argued, Hercules failed to do and, accordingly, its negligence was operating at the time the decedent grasped the guy wire and made contact with the high tension wire.

An owner of land who has had erected and maintains on...