Jones v. Appalachian Elec. Power Co., 11086

• Citation: 145 W.Va. 478,115 S.E.2d 129
• Decision Date: 19 July 1960
• Docket Number: No. 11086,11086
• Court: West Virginia Supreme Court
• Parties: Inize JONES, Admrx., Estate of Kenneth Jones, Deceased, v. APPALACHIAN ELECTRIC POWER CO., etc., et al.

Page 129

115 S.E.2d 129

145 W.Va. 478

Inize JONES, Admrx., Estate of Kenneth Jones, Deceased, v. APPALACHIAN ELECTRIC POWER CO., etc., et al.

No. 11086.

Supreme Court of Appeals of West Virginia.

Submitted May 4, 1960.

Decided July 12, 1960.

Dissenting Opinion July 19, 1960.

Syllabus by the Court

1. 'A person in charge of or maintaining an instrumentality inherently dangerous is not liable to one who is injured thereby in a manner which could not be reasonably anticipated.' Pt. 3, Syllabus, Musser, Adm'r v. Norfolk and Western Railway Company, 122 W.Va. 365, 9 S.E.2d 524.

2. The owner or occupant of land, who has contracted with an independent contractor to construct a road across such land, is not liable for the death of an employee of such independent contractor, caused when the boom of a crane came into contact with an uninsulated, 2300 volt electric wire 32 feet above the ground, where the employees of such independent contractor had been warned of the rpesence of such wires and the wires were in plain view.

3. The amount of compensation received for injury or death from the Workmen's Compensation Fund is not a proper subject for a remittitur in an action by the injured person, or the administrator of his estate in case of death, against a third party responsible for his injury or death.

Shaffer & Shaffer, H. G. Shaffer, Jr., H. G. Shaffer, Madison, for plaintiff in error.

Samuel D. Lopinsky, Arthur T. Ciccarello, Charleston, for defendant in error.

BROWNING, President.

Kenneth Jones, an employee of Harry Hatfield and Company, a contracting company, engaged in the construction of a road over the lands of the Red Parrot Coal Company, hereinafter designated as defendant, was electrocuted when the boom of a crane around which he was working came into contact with an overhead, uninsulated, 2300 volt power line belonging to the Appalachian Electric Power Company, hereinafter called Power Company. His widow, Inize Jones, filed a claim against his employer, Harry Hatfield and Company, with the Workmen's Compensation Fund and was awarded the statutory benefits to herself and three dependent children. She then, as administratrix of her deceased husband's estate, instituted this action for wrongful death against the defendant and the Power Company. At the conclusion of plaintiff's evidence, a motion for a directed verdict in behalf of the Power Company was sustained by the court. The case proceeded against the defendant, against which the jury returned a verdict in favor of the plaintiff in the amount of $20,000, and judgment was entered thereon, to which judgment this Court granted a writ of error and supersedeas on September 28, 1959.

The material facts are not in dispute. Hatfield and Company, an independent contractor, was engaged by defendant to construct a road across its lands, in the course of which it was necessary to bridge one or more streams. This bridging was accomplished by joining sections of corrugated pipe 3 1/2 feet in diameter and approximately 7 feet in length, weighing between 350 and 500 pounds. It was necessary to use a crane in excavation and in raising the pipe from its position beside the road and lowering it into the desired location, the crane in question having a 45 foot boom, along which a wire rope was passed and connected with a chain which secured the pipe. At the time of the accident, plaintiff's decedent was pulling on the wire rope, or attached chain, in an effect to properly place it in position on the pipe and gave the crane operator a signal to raise the boom. Decedent then passed from the crane operator's view, but a fellow employee continued to give the 'raise' signal, until the boom touched the overhead uninsulated line of the Power Company. This 2300 volt line was 35 feet from the ground and on one side of a cross-arm 6 1/2 feet distant from a similar line. Immediately afterwards, decedent was discovered to be dead, admittedly by electrocution. The crane operator had been warned about the wires by his foreman, and, a week or two previous to the accident, defendant's outside construction foreman had told the crane operator 'to be careful around there that there was a lot of electric wires and to watch and not get that boom into them.' There was also evidence that the boom had struck a wire the previous day without injury to anyone. A motion for a directed verdict in behalf of the defendant at the conclusion of plaintiff's evidence was overruled.

Defendant's evidence consisted of testimony by an employee of the State Road Commission that the minimum height for a 2300 volt line over Class A Highways in this State is 18 feet, and the general manager of defendant who testified, on direct examination, that he was familiar with the scene of the accident, had seen the crane involved and that such crane was capable of moving under its own power. On cross-examination, this witness testified that neither he, nor anyone in his behalf, or in behalf of the defendant, at any time called the Power Company to determine whether the power lines could be switched away from the location in which the crane was operating, but admitted that that could have been done. Defendant also, by avowal, introduced evidence that the present value of the award granted by the Workmen's Compensation Fund to the plaintiff and her three dependent children was $14,987, payable at the rate of $105.00 per month, or a total amount paid to the date of the commencement of the action of $4,203.39. At the conclusion of defendant's evidence, a second motion for a directed verdict in behalf of the defendant was overruled.

After the jury had received the case and deliberated for a period of 1 hour and 15 minutes, the jury returned to the courtroom and requested that the testimony of defendant's general manager be read, and, over defendant's objection, the entire testimony of that witness was re-read to the jury, which then retired and resumed its deliberations.

Seventeen assignments of error are made in this Court which may be summarized as follows: (1) The overruling of defendant's motions for a directed verdict; (2) the giving of Plaintiff's Instructions Nos. 1, 3, 4 and 5; (3) the refusal of Defendant's Instructions A, D, E, F, I and K; (4) the re-reading of the testimony of defendant's general manager to the jury, after the jury had received the case; and (5) the refusal to require a remittitur of the sums received, and to be received, by the widow and children from the Workmen's Compensation Fund.

The threshold question for consideration is whether the evidence was such as to present a factual question for determination by the jury upon the issue of the primary negligence of the defendant. The evidence shows that the relationship of the deceased and the defendant was that of invitor and invitee. The owner or occupant of the land owes to an invitee the duty of due care. The invitee, who comes upon the premises of the owner or occupant by invitation, has a right to assume that the premises are reasonably safe for the purpose for which he is invited to come upon such premises. Starcher v. South Penn Oil Co., 81 W.Va. 587, 95 S.E. 28. However, the rule is firmly established in this jurisdiction by many decisions of this Court that the owner or occupant of the premises is not an insurer of the safety of a trespasser, licensee, or invitee, even when such person is injured or killed by coming in contact with a high voltage electric wire. Maggard v. Appalachian Electric Power Co., 111 W.Va. 470, 163 S.E. 27; Waddell v. New River Co., 141 W.Va. 880, 93 S.E.2d 473; and many cases cited therein to the effect that the rule stated above is applicable even in the case of children who are injured or killed by coming in contact with an uninsulated wire charged with electricity. These decisions are to the effect that the maintenance of an uninsulated high voltage wire is not alone sufficient to establish negligence. The 3rd. Syllabus Point of Musser, Adm'r v. Norfolk and Western Railway Company, 122 W.Va. 365, 9 S.E.2d 524, succinctly states the rule by which liability is determined. It reads: 'A person in charge of or maintaining an instrumentality inherently dangerous is not liable to one who is injured thereby in a manner which could not be reasonably anticipated.'

The trial court, in refusing to direct a verdict for the defendant, mentioned and undoubtedly relied upon the case of Humphreys v. Raleigh Coal and Coke Co., 73 W.Va. 495, 80 S.E. 803, 805, L.R.A.1916C, 1270. The plaintiff in that action was injured by coming into contact with an uninsulated electric wire in the coal mine of his employer in a part of the mine which he was visiting for the first time. The wire was about four feet from the floor. The action was instituted prior to the enactment of a workmen's compensation law in this State. This Court held that a person using 'the silent mysterious force called electricity' in a place where he knows other persons may be exposed to it 'is bound to take precaution for their safety by insulation of the instrument used in its application or some other adequate means.' However, the facts in that case are easily distinguished from those in the instant case. In determining that the maintenance of the uninsulated wire under the circumstances was a negligent act on the part of the defendant, the Court said: 'The breakthrough and air course in which the bare part of the wire in question was used were not passage ways nor places of ordinary work. Nevertheless, there was occasion to enter them, when they were adopted as proper locations for the pump and feed wire. There was a 'pump runner', whose duty it was, entering by the breakthrough and air course through which the wire ran, to visit the pump, and keep it in operation when necessary, and it was also necessary for somebody to place the pump in that place, and remove it. Any of these persons stumbling, slipping, or falling, or inadvertently throwing out...