Hillman v. Northern Wasco County People's Utility Dist.

• Citation: 213 Or. 264,323 P.2d 664
• Parties: Les HILLMAN, Appellant, v. NORTHERN WASCO COUNTY PEOPLE'S UTILITY DISTRICT, a public corporation, Respondent.
• Decision Date: 26 March 1958
• Court: Supreme Court of Oregon

Page 664

323 P.2d 664

213 Or. 264

Les HILLMAN, Appellant, v. NORTHERN WASCO COUNTY PEOPLE'S UTILITY DISTRICT, a public corporation, Respondent.

Supreme Court of Oregon.

Argued and Submitted May 6, 1957.

Decided March 26, 1958.

William G. Dick, The Dalles, argued the cause for appellant. On the brief were Dick & Dick, The Dalles.

H. M. Schwab, Portland, argued the cause for respondent. On the brief were Dusenbery, Martin Schwab, Beatty & Parks, Raymond M. Kell and Clifford B. Alterman, Portland.

Before PERRY, C. J., and LUSK, BRAND, McALLISTER and KESTER, ^* JJ.

McALLISTER, Justice.

The plaintiff, Les Hillman, brought this action against the Northern Wasco County People's Utility District to recover damages for personal injuries. The defendant is a quasi-municipal corporation engaged in the distribution and sale of electrical energy in a district which includes The Dalles and adjacent territory. While plaintiff was engaged in removing two beams from the wall of a burned-out building he received a shock from an adjacent electrical installation maintained by defendant and fell from the wall. The jury returned a verdict for plaintiff in the sum of $82,500.

After the entry of a judgment for plaintiff, the defendant moved for a judgment notwithstanding the verdict and in the alternative for a new trial. The court denied the motion for judgment n. o. v. but granted the motion for new trial. The plaintiff has appealed from the order setting aside the judgment and granting a new trial and the defendant has cross-appealed from the order denying the motion for a judgment n. o. v.

The accident occurred on December 21, 1952, in an alley running east and west through the center of a block in the business district of The Dalles. The alley ran from Washington street on the west side of the block to Federal street on the east. A brick building had originally extended along the entire south side of the alley. In about 1933 the interior of the east half of the building had burned out but the outer wall extending along the alley remained standing. After the fire only the west half of the building was used.

In about 1949, the defendant installed a main electrical transmission line through this alley. As a part of this installation, the defendant erected a transformer platform at a point about halfway through the alley. Two power poles were placed about 10 feet apart at the south edge of the alley close to the wall. The rear wall of the building occupying the west half of the property joined the wall along the alley at a point about midway between these two poles. The westerly pole stood alongside the occupied portion of the building and the easterly pole alongside the wall of the gutted portion of the building.

The wall was about 39 feet high and the poles were about 34 feet high. A few feet below the top of the poles a crossarm fastened to the side of the poles next to the wall extended between the poles parallel to and within a few inches of the wall. With one end resting on this parallel crossarm, another crossarm about four feet in length extended vertically from the wall toward the center of the alley. On this vertical crossarm there were installed at intervals three devices known as 'potheads' which in general appearance resemble large insulators. Out of the top of each pothead there extended a short, heavy copper wire known as a 'pigtail.' The pigtails and the top portion of the potheads were not insulated and carried about 12,470 volts of electricity between conductors. Each pothead was connected to the main transmission line and was installed to serve as a connection between the transmission line and a transformer but no transformers had been installed on this platform. The southerly pothead was about 14 inches from the building wall and contact with the pigtail of this pothead caused plaintiff's injury. The main transmission line was described as an aerial cable consisting of four wires wrapped together and was suspended from other vertical crossarms placed on the pole about three feet above the crossarm bearing the potheads. The cable and the wires leading from it to the base of the potheads were insulated and under normal conditions could be touched without danger.

Sometime prior to the accident, the owner engaged a building contractor named McManigle to erect a new building on the east half of the property. Before construction of the new building could start, it was necessary to tear down the old brick wall along the east half of the alley. The job was complicated by two beams which extended vertically from the wall near the top thereof to the opposite wall of the gutted building. It appears that McManigle's regular employees erected a scaffold and removed the top of the wall down to a height of about 32 feet which left exposed the ends of the two beams as they rested on the wall.

The plaintiff, Les Hillman, was about 36 years of age at the time of the accident and had lived in The Dalles for several years. He and his wife operated a paint store known as the 'Pot and Brush' located in the building on the west half of the property described above. In addition, Hillman and a partner, Gene Merrion, were engaged in business as painting contractors. Hillman had also done occasional jobs around The Dalles as a high-climber but the precise extent of his experience in that field is not disclosed. As a painter and a high-climber, Hillman had worked at times around electrical wires and electrical installations and occasionally received electric shocks which he said 'most painters do.'

In his complaint, Hillman alleged that he was employed by the builder McManigle to remove the beams from the wall, but as a witness, Hillman testified that he contracted with McManigle to do the job at a fixed price and was free to employ such help as he wanted. Hillman and his partner, Gene Merrion, started to remove the beams on a Sunday morning. Plaintiff climbed upon the scaffolding and fastened a cable to the more easterly of the two beams. The scaffolding was then removed so that it would not be damaged by the falling beams. Hillman found his own truck too light for the job and hired a tow truck equipped with a winch to pull down the beams. The tow truck was operated by one of the owners thereof named Wolgamot. The first beam was pulled down by the tow truck. This left exposed a steel plate which had been imbedded in the wall and on which the beam had rested. This plate was about 18 inches wide, three feet long and weighed about 120 pounds.

Using a ladder, Hillman then climbed up and fastened a cable to the remaining beam which was near the rear wall of the building. He then decided to push the steel plate on which the easterly beam had rested off the wall. Hillman thought that the plate might fall when the second beam was pulled loose and cause injury or damage. In order to get to the steel plate, plaintiff climbed over the wall and stepped onto the parallel crossarm of defendant's transformer platform. Plaintiff then stepped sideways along the crossarm to the east until he reached the steel plate. Plaintiff was then near the southerly end of the vertical crossarm on which the potheads were installed and his feet were near the base of the southerly pothead. As he stood on the crossarm the top of the wall was just below plaintiff's belt.

Plaintiff testified that he then put his left leg on the top of the wall, steadied himself with his right hand and with his left hand attempted to push the plate off the wall. In that position, plaintiff's right leg was hanging free and while he was so engaged, his right heel apparently touched the pigtail or the top of the southerly pothead. Plaintiff received a severe shock and fell off the wall onto the ground inside the building. As a result of the shock and fall, plaintiff was seriously injured.

Plaintiff's only assignment of error is the granting of defendant's motion for a new trial. The motion for new trial specified seven alleged errors as grounds therefor and the trial court concluded that it had committed prejudicial error in four of the particulars specified in the motion.

It is settled law in this state that an order for new trial made on motion of the party aggrieved need not state the ground or reason on which the order is based. The order granting a new trial will not be reversed if it should be sustained on any ground assigned in the motion whether referred to in the order or not. The burden is on the party seeking to reverse an order granting a new trial to show that none of the grounds specified in the motion is well taken. Correia v. Bennett and Johnson, 199 Or. 374, 384, 261 P.2d 851; Bartholomew v. Oregonian Pub. Co., 188 Or. 407, 411, 216 P.2d 257; Smith v. Pacific Truck Express, 164 Or. 318, 323, 100 P.2d 474; Zeek v. Bicknell, 159 Or. 167, 169, 78 P.2d 620; Arthur v. Parish, 150 Or. 582, 586, 47 P.2d 682; Cicrich v. State Industrial Accident Commission, 143 Or. 627, 635, 23 P.2d 534.

It is also well settled that where error has been committed a motion for new trial is addressed to the sound discretion of the trial court and an order granting such motion will be reversed only for a manifest abuse of that discretion. A much stronger showing is required to authorize a reversal of an order granting a new trial than to reverse an order denying a motion therefor. Burrows v. Nash, 199 Or. 114, 259 P.2d 106 and Clark v. Fazio, 191 Or. 522, 230 P.2d 553.

The first two errors assigned in the motion for new trial involve the legality of the adoption of the national electrical code and the national electrical safety code as the electrical code and electrical safety code for Oregon. In his second amended complaint, the plaintiff alleged that the defendant in the installation and maintenance of its electrical transmission line and the devices installed on its transformer platform had violated both codes and the court instructed the jury that a violation of the codes...