Hysell v. Iowa Public Service Co.

• Decision Date: 28 May 1976
• Docket Number: No. 75-1414,75-1414
• Parties: Richard Henry HYSELL and Barbara Hysell, Appellees, v. IOWA PUBLIC SERVICE COMPANY, Appellant, and The City of Sioux City, Iowa, Appellee, v. Thurman SIMPSON and Irving F. Jensen Company, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 775

534 F.2d 775

Richard Henry HYSELL and Barbara Hysell, Appellees, v. IOWA PUBLIC SERVICE COMPANY, Appellant, and The City of

Sioux City, Iowa, Appellee, v. Thurman SIMPSON and Irving F. Jensen Company, Appellees.

No. 75-1414.

United States Court of Appeals,

Eighth Circuit.

Submitted Dec. 10, 1975.

Decided April 12, 1976.

As Amended on Denial of Rehearing and Rehearing En Banc May 28, 1976.

Frank Jacobs, Jacobs, Gaul, Nymann & Green, Sioux City, Iowa, for appellant; Dewie J. Gaul, Sioux City, Iowa, on brief.

Sam W. Masten, Canton, S.D., for appellees, Richard Henry and Barbara Hysell; William E. Kunze, Gleysteen, Harper, Kunze, Eidsmoe & Heidman, Sioux City, Iowa, on brief.

Maurice B. Nieland, Kindig, Beebe, McCluhan, Rawlings & Nieland, Sioux City, Iowa, for appellee, Simpson and Jensen; Robert E. Beebe, Sioux City, Iowa, on brief.

Patrick C. McCormick, Sioux City, Iowa, for appellee, City of Sioux City, Iowa.

Before ROSS, STEPHENSON and WEBSTER, Circuit Judges.

WEBSTER, Circuit Judge.

Richard and Barbara Hysell, husband and wife, instituted this diversity action for the recovery of damages for personal injuries from the Iowa Public Service Company (IPS) and the City of Sioux City, Iowa. ¹ IPS and Sioux City joined the Irving F. Jensen Company and Thurman Simpson, an employee of Jensen Company, as third-party defendants for indemnity or contribution. Sioux City also filed a cross-claim against IPS seeking contractual indemnification.

The principal facts are undisputed:

Richard Hysell was employed by Jensen Company as a grading and paving laborer on the construction of city streets. On May 18, 1973, Hysell and other Jensen Company employees were working in Sioux City, Iowa, on the completion of Murray Street, an unplatted road which intersected Harbor Drive from the west. IPS owned an uninsulated power line transmitting 12,420 volts of electric current that stood at a maximum height of nineteen and one-half feet above and twelve to fifteen feet within the western boundary of the right-of-way of Harbor Drive in the area of its intersection with Murray Street. No signs or other devices warning of possible danger from the line were placed in the area.

At approximately 5:15 p.m., Thurman Simpson was operating a boom truck used in the transportation and placement of street paving forms. The maximum height of the boom in normal operating position was nearly twenty-one feet. As a form was being unloaded along Murray Street near the intersection with Harbor Drive, the boom came into contact with the IPS power line. Hysell reached into a compartment of the boom truck at the same time the contact with the line occurred, and he received a severe electric shock and burns, resulting in the substantial injuries which are the subject of this suit.

Various officers and employees of IPS knew that construction was increasing in the area of the intersection of Harbor Drive and Murray Street and that the particular grading and paving project involved here had been undertaken. Sioux City, though not a party to the contract under which the project was performed, frequently sent inspectors to the construction area to assure conformity with city specifications and had paid certain of the costs of paving Harbor Drive.

At the time of the accident, a franchise agreement existed between Sioux City and IPS for the supply of electricity and natural gas to city residents. The agreement contained language from a Sioux City ordinance which prohibited the maintenance of transmission lines at any height less than twenty-five feet from the surface of the street. A second city ordinance, not mentioned in the agreement, established the same requirement. Sioux City made no attempt to enforce the minimum height provision, and IPS made no inspections of the line to conform its position to the requirement. The franchise agreement also provided that IPS would indemnify Sioux City for any loss or damage occurring through any "excavation, structure, or device" placed by IPS within the city limits. No contract existed between Jensen Company and IPS or Sioux City with regard to the street grading and paving project.

The District Court, sitting without a jury, found that, at the time of the accident, the electric line was negligently constructed and maintained by IPS and that this negligence was a proximate cause of the damages; that the electric line was a nuisance in Harbor Drive and a proximate cause of the damages; that Sioux City failed to abate the nuisance and negligently failed to enforce its electric line height ordinances and that this conduct was a proximate cause of the damages; that the boom came into contact with the transmission line through the negligence of Simpson in failing to maintain a proper lookout; and that Richard Hysell was not contributorily negligent. The District Court awarded Richard Hysell $1,500,000 in damages for his personal injuries, past and future pain and suffering, past and future medical expenses, past and future loss of earnings, and diminution of services and companionship as a husband. It further found that Barbara Hysell had incurred past and future loss of her husband's services, companionship, and consortium as a proximate result of the accident, and awarded her $200,000 in damages. The liability was assessed against IPS and Sioux City; and IPS was held to be required to indemnify Sioux City pursuant to the franchise agreement. IPS and Sioux City were held to have failed to prove entitlement to indemnity or contribution from Jensen Company or Simpson, or that the negligence of these parties was an intervening cause.

IPS appeals, contending (1) that the evidence was insufficient to establish its negligence; (2) that any negligence on its part was not a proximate cause of the accident; (3) that it was entitled to indemnity or contribution from Jensen Company and Simpson; (4) that Sioux City was not contractually entitled to indemnity; and (5) that the award of $1,500,000 to Richard Hysell was unsupported by the facts and excessive. ²

I. IPS Negligence

The District Court found that IPS had negligently constructed and maintained the electric transmission line over Harbor Drive. We review this conclusion under the "clearly erroneous" standard of Fed.R.Civ.P. 52(a). In re Flowers, 526 F.2d 242, 244 (8th Cir. 1975); Chicago & N.W. Ry. v. Minnesota Transfer Ry., 371 F.2d 129, 131 (8th Cir. 1967). See generally 9 C. Wright & A. Miller, Federal Practice and Procedure § 2590 (1971).

IPS does not dispute that its transmission line at Harbor Drive was strung at a maximum height of nineteen and one-half feet above the ground at the area of the intersection of Harbor Drive and Murray Street. Sioux City Ordinance § 17.04.070 provides in part:

All * * * electric wires * * * shall not be strung along * * * the streets * * * of the City at an elevation of less than twenty-five feet above the surface of the street * * * whereon they may be erected * * *.

Sioux City Ordinance § 12.04.110 similarly provides:

(N)o wire, cable, cross-arm or other device used in the transmission of electric current shall be maintained at any height less than 25 feet from the surface of the street in the City * * *.

The latter provision was also reproduced as part of the franchise agreement between IPS and Sioux City.

Under Iowa law, the question of whether violation of such city ordinances constitutes negligence per se or merely prima facie evidence of negligence is decided in light of the purpose and intent of the provisions. Jorgensen v. Horton, 206 N.W.2d 100, 102 (Iowa 1973); Montgomery v. Engel,179 N.W.2d 478, 483-84 (Iowa 1970). See Lamasters v. Snodgrass,248 Iowa 1377, 1383-85, 85 N.W.2d 622, 625-27 (1957). See generally W. Prosser, Handbook of the Law of Torts § 36 (4th ed. 1971). The District Court apparently construed the purpose and intent of these ordinances to require a finding of negligence per se for their violation. The District Court's interpretation of these local laws is entitled to great deference, Ideal Plumbing Co. v. Benco, Inc., 529 F.2d 972, 979 (8th Cir. 1976); Carson v. National Bank of Commerce Trust and Savings, 501 F.2d 1082, 1083 (8th Cir. 1974), and cannot be said to be in error.

IPS contends, however, that since the transmission line was not directly above the paved surface of Harbor Drive, the proper measure of its elevation under these ordinances would be the length of a straight line hypothetically drawn from the edge of the traveled surface of Harbor Drive to the line. A triangulation prepared for this purpose and entered into evidence indicated that the distance along such a line would be twenty-six feet. IPS thus asserts that since the transmission line is thereby shown never to extend within twenty-five feet from the surface of the street, there was no proof that it was negligent or otherwise violative of the ordinances.

This is not a realistic interpretation of the ordinances. The provisions are not addressed merely to distances, but speak in terms of elevation and height. The lines are not to be placed twenty-five feet away from the surfaces of streets, but twenty-five feet above such surfaces. Moreover, IPS incorrectly perceives the surface of a street to include only the paved or traveled portions. Sioux City Ordinance § 10.04.440 defines "street" as "the entire width between the boundary lines of every way publicly maintained when any part thereof is open to the use of the public for purposes of vehicular travel." Cf. Hal v. Town of Keota, 248 Iowa 131, 135, 79 N.W.2d 784, 786 (1956). Since the transmission line was clearly within the boundaries of Harbor Drive, the IPS triangulation theory, if viable, would produce a measurement which was violative of the ordinances.

The finding of negligent construction and maintenance of the wires by IPS thus cannot be said to be clearly erroneous. ³

II. Proximate Cause

In order for the negligence of IPS to be actionable, it must...