Interstate Power Co. v. Thomas

• Decision Date: 11 August 1931
• Docket Number: No. 9033.,9033.
• Citation: 84 ALR 681,51 F.2d 964
• Parties: INTERSTATE POWER CO. v. THOMAS.
• Court: U.S. Court of Appeals — Eighth Circuit

84 ALR 681, 51 F.2d 964 (1931)

INTERSTATE POWER CO. v. THOMAS.

No. 9033.

Circuit Court of Appeals, Eighth Circuit.

August 11, 1931.

Charles H. Weyl, of St. Paul, Minn. (Briggs, Weyl & Briggs, of St. Paul, Minn., on the brief), for appellant.

A. A. Trost, of Warren, Minn., for appellee.

Before KENYON and BOOTH, Circuit Judges, and OTIS, District Judge.

KENYON, Circuit Judge.

This is an appeal from a judgment of the District Court of the United States for the District of Minnesota in an action brought by O. W. Thomas, appellee, against Interstate Power Company, appellant, for damages for personal injury caused by an electric shock to the said Thomas from appellant's power line.

Parties will be designated as in the trial court.

The facts are as follows: Plaintiff was a farmer, who for twenty-four years previous to the accident had lived on a farm four miles south of Warren, Minn. Minnesota highway No. 6 passed the farm in a north and south direction, the farm being on the west side thereof. Defendant is in the business of furnishing electric power, and maintains a main electric line along the west side of said highway No. 6, which carries a current of 22,000 volts. Defendant had an insulated wire from this to his house, which had a voltage of 110 volts. About one-half mile north of where plaintiff lived there is an intersecting east and west road to highway No. 6. On the north side of this road defendant maintained on poles three hundred feet apart an insulated electric wire carrying 2,300 volts, which served the Torgerson farm and none other. Between the Torgerson farm and highway No. 6, and about one-half mile from said highway and practically midway between the poles supporting the wire, there is a public road running in a northerly direction past the Fisher farm and continuing north about four miles until it intersects the main road easterly from the town of Warren. Plaintiff at the time of the accident was with Fisher and one Kayes, owner of an Aultman-Taylor separator and a Rumley engine. The elevator on the separator was fourteen feet long. The lowest part one foot and seven inches from the ground. There was an iron rod coming out of the top of the separator, bolted to it with set screws. The elevator was made of wood on the outside and lined with steel or tin on the inside. The weigher on top was made of heavy tin and iron. September 23, 1927, plaintiff was moving this separator from the Edgar farm east of the Torgerson farm to the Fisher farm. The separator, the wheels of which were of metal, was set up and was being moved with a tractor. Attached behind the separator was a tank containing the gas and water for the tractor. The tractor was used for threshing and for moving the machine, but could be detached. After going west and passing the Torgerson farm plaintiff turned to the north at the road to the Fisher farm. It was necessary to pass under the electric wire running along the north side of the east and west highway from the main line on highway No. 6 to the Torgerson farm. This north and south road running by the Fisher farm was not graded as was the east and west road which made the latter somewhat higher than the Fisher road, so that in passing from the east and west road on to the Fisher road there was a descending grade. After plaintiff had reached the north road with the separator and the tractor and was passing under the electric wire he looked back from his seat on the tractor and saw that the wire would catch the elevator on the separator. He stopped the tractor, went back to the separator and examined the situation. The wire was about seven inches down from the top of the elevator and was touching it. He did not back up because of the grade from the east and west road and because of the oil tank and the feeling that to back up would smash his blower. After studying the dilemma he was in he felt of one of the wheels of the separator to make sure it was not charged with electricity. He decided to try and get the wire loose from the elevator and he intended to take a ladder he had with him five or six feet in height and use it to pry the wire from the separator and over it, and then drive on. He stepped on the axle with his right foot and on top of the wheel with his left foot. When he took hold of the iron rod which came from the top of the separator to assist himself in getting on to the separator he received the shock which resulted in his injuries. He could not loosen his hands, and the next he knew he was in the hospital at Warren. There was a mark on the elevator where the wire had touched it, which gave the appearance of a burn. This was not discovered until after the accident.

At the close of the testimony defendant moved the court for an instructed verdict upon the grounds that the evidence failed to show any actionable negligence, and that plaintiff was guilty of contributory negligence as a matter of law. The court denied the motion, the case was submitted to the jury, which returned a verdict for plaintiff.

A motion for judgment notwithstanding the verdict was denied, and a motion for new trial was overruled.

Two propositions are urged on this appeal, both preserved by proper motion in the trial court: (1) That plaintiff did not show any actionable negligence on the part of defendant; (2) that plaintiff was guilty of contributory negligence as a matter of law.

On the issue of defendant's negligence, the court instructed the jury as follows:

"It is the duty of a power company to use reasonable care to keep its lines at a height which will not interfere with the customary use of the highway for travel. If it fails to use care in that regard, it is negligent. If a road is used for transportation of high machinery, the company must recognize that fact and in placing its wires across such road, must place them high enough not to obstruct it. The company must also use reasonable care to prevent its wires from sagging so as to become dangerous to those travelling the highway. Reasonable care in transporting high voltage over wires means a high degree of precaution, a degree of care equal or commensurate to the risk involved. Failure of a power company to anticipate and guard against events which may reasonably be expected to happen, is negligence, but failure happening which would not have arisen except under exceptional or unusual circumstances, is not negligence. * * *

"If, from a fair preponderance of the evidence or overweight of the testimony, you find that the Power Company, in the exercise of due care, should have anticipated that this power wire would sag to a point over this road, so as to come into contact with a vehicle such as this separator was, and that this highway was one which it was reasonable to suppose would be used by such vehicles, and that the Company should, in the exercise of reasonable care, have taken precautions other than such as the evidence shows were taken to prevent such sagging, either by putting in a pole or taking some other precaution, then you could find that the Power Company was negligent. Unless you do find that the Power Company was negligent in that regard, you will bring in a verdict in favor of the Company, and that will end this case."

The failure to give warning at the point where the accident happened was held by the court to be no basis for a finding of negligence, assuming that as originally constructed the line was high enough so as not to be dangerous.

Plaintiff claims that defendant was negligent in constructing and maintaining an uninsulated wire containing a voltage of 2,300 volts in such manner that it sagged until it was less than sixteen feet from the surface of a public highway; that it should have placed its poles closer to the highway and thus have avoided the dangerous sag at the point where the road passed under the wire. Power companies are by statute given certain rights on Minnesota highways.

Section 7536, General Statutes of Minnesota, 1923, is as follows: "Use of public roads — Restriction — Any water power, telegraph, telephone, pneumatic tube, or * * * light, heat or power company may use public roads for the purpose of constructing, using, operating, and maintaining lines, subways, canals, or conduits, for their business, but such lines shall be so located as in no way to interfere with the safety and convenience of ordinary travel along or over the same; and in the construction and maintenance of such line, subway, canal or conduit the company shall be subject to all reasonable regulations imposed by the governing body of any town, village or city in which such public road may be. Nothing herein shall be construed to grant to any person any rights for the maintenance of a telegraph, telephone, pneumatic tube, light, heat or power system within the corporate limits of any city or village until such person shall have obtained the right to maintain such system within such city or village, or for a period beyond that for which the right to operate such system is granted by such city or village." R. L. § 2927, amended 1911, c. 57, § 1.

Power lines under the Minnesota statutes must be located in such way on the public roads as not to interfere with the safety and convenience of ordinary travel along or over the same. No new standard of care is set up. The Minnesota law applicable is well expressed in Bunten v. Eastern Minnesota Power Co., 178 Minn. 604, 228 N. W. 332, 333, where the court said: "Those engaged in transmitting such a dangerous force as electricity, which gives no warning of its presence and is not apparent to the senses, are required to exercise a degree of care in constructing and maintaining the wires over which it is transmitted commensurate with the danger to be apprehended from contact with such wires or the escape of electricity therefrom; but they are not insurers against accidents or injuries. * * * It has also been held negligent to fail to maintain such wires at a...