Isaacs v. Eastern Iowa Light & Power Co-op.

• Decision Date: 19 June 1945
• Docket Number: 46705.
• Court: Iowa Supreme Court
• Parties: ISAACS v. EASTERN IOWA LIGHT & POWER CO-OP.

19 N.W.2d 208

236 Iowa 402

ISAACS v. EASTERN IOWA LIGHT & POWER CO-OP.

No. 46705.

Supreme Court of Iowa

June 19, 1945

Cook, MacLaughlin, Blair & Balluff, of Davenport, and Dutcher, Ries & Dutcher, of Iowa City, for appellant.

D C. Nolan, of Iowa City, for appellee.

HALE, Chief Justice.

This is an action for damages for injuries occasioned by electric current from appellant's transmission line in Johnson County, Iowa. Count I of plaintiff's petition relies upon the presumption of negligence created by Section 8323, Code of Iowa 1939, and Count II, which was withdrawn by the trial court, was for specific acts of negligence. The allegations we have to consider are based on Count I. Appellant in its answer denied any negligence and averred that appellee's injuries were due to an act of God and an unavoidable casualty. Motion of appellant for directed verdict was overruled and the verdict of the jury was in favor of appellee.

The line owned and operated by appellant is in Johnson County. The injuries sustained occurred about two and one-half miles southwest of Iowa City on a rural highway running past what is known as the Kelly farm and appellee's home. The transmission line runs northward along and parallel with the east side of the road until it reaches the Kelly farmyard, where, to avoid a grove of trees, the line crosses to the west side of the road and continues northward along the west side for several hundred feet, when it recrosses the road to the east side and continues northward from that point. The accident occurred at the north crossing of the line from the west to the east side of the road, and the pole involved in the accident is the first pole north of the Kelly farmyard on the east side of the road. A telephone line which served appellee's home her brother's place and other homes in that vicinity runs along the west side of the road where the accident occurred. From this telephone line there was a two-wire lead-in line into the Kelly house, extending across the road and under the transmission line. The pole immediately north of the Kelly farmyard is braced with a guy wire at a point attached to the pole about 18 inches from the top. The transmission wire was suspended between insulators mounted on the pole which held the wire about 3 inches above the top of the pole. These insulators were held to the pole by means of 12 inch pins bolted to the pole at the sides.

During a rainstorm a bolt of lightning struck the top of the pole and the upper 18 inches of the pole was shattered, causing the conducting line with the attached insulators and pins to fall on the surface of the roadway in such a manner that the insulators and pins rested on the ground but held that wire off the road. The injury to the transmission line at the angle where the pole was situated allowed the line to sag down to and across the highway a little distance above the surface of the ground. The space between the shattered pole and the next pole north on the east side of the road was about 200 feet and it was the same distance from the next pole south on the west side of the road. The wire involved was not insulated. There was a circuit breaker about 15 miles away but the day after the accident appellant installed a new circuit breaker about an eighth of a mile south of the scene of the accident.

Appellee was awakened about 3 A. M. on August 23, 1943, and discovered that the home of her parents, with whom she lived, was on fire and the telephone wires encircling the house were flaming. She attempted to turn on the lights but they were very dim. She tried the telephone and it did not work. She then got in her automobile and drove to her brother's house and at his suggestion she started to town to get the electricity shut off, and while travelling north her automobile came in contact with the live transmission line which was sagging down onto the highway immediately north of the Kelly farm and about a mile from her parent's home. When appellee's automobile struck the live wire a sharp flash or ball of fire enveloped the car and caused her to lose control and the car went into the ditch on the right side of the road injuring appellee and damaging the car. The burned area on the car showed it came in contact with the transmission line and there was also a burned area on the electric line showing it was in contact with the telephone line.

The error complained of by appellant is that the court erroneously overruled its motion for directed verdict, which in substance alleged that appellee failed to meet the burden of proving appellant guilty of negligence and that the undisputed evidence shows as a matter of law the absence of negligence on the part of appellant.

Section 8323, Code of Iowa 1939, so far as applicable here, is as follows:

'In case of injury to any person or property by any such transmission line, negligence will be presumed on the part of the person or corporation operating said line in causing said injury but this presumption may be rebutted by proof.'

Section 8326 prescribes the manner in which such lines shall be built and maintained. A part of said section sets out the rules for crossing other wires as follows:

'Where wires carrying current are carried across, either above or below wires used for other service, the said transmission line shall be constructed in such manner as to eliminate, so far as practicable, damages to persons or property by reason of said crossing. There shall also be installed sufficient devices to automatically shut off electric current through said transmission line whenever connection is made whereby current is transmitted from the wires of said transmission line to the ground, and there shall also be provided a safe and modern improved device for the protection of said line against lightning.'

I. Appellant argues that the presumption of negligence created by Section 8323 shifted to appellant the duty of going forward with the evidence but the burden of proof nevertheless remained upon appellee. Citing Walters v. Iowa Elec. Co., 203 Iowa 471, 212 N.W. 884. That case does not support this contention, but holds that the burden was on defendant. However that may be, the case holds that the proof of the damage and proof that fire was communicated by crossing of said line, plus the statutory presumption of negligence, made a prima facie case for recovery. See also Beman v. Iowa Elec. Co., 205 Iowa 730, 735, 218 N.W. 343, 346, where it is said:

'It was upon the defendant to rebut that presumption and to show that the injury and resulting damages were not caused by any act or omission on the part of the owner of the transmission line.' Citing the Walters case.

Appellant argues that the rules of evidence are analogous to those applied in cases involving the doctrine of res ipsa loquitur. It is further argued that as in other cases involving rebuttable presumptions, the burden of going forward with the evidence reverted to the plaintiff when the proof of the defendant disclosed the lack of negligence on its part citing Schaeffer v. Anchor Mut. Fire Insurance Co., 133 Iowa 205, 100 N.W. 857, 110 N.W. 470, in which a presumption was conclusively negatived; State v. Butler, 186 Iowa 1247, 173 N.W. 239, which holds that if the avoidance of the presumption had no flaw the indictment must fail; and Kauffman v. Logan, 187 Iowa 670, 174 N.W. 366, holding that...