Kentucky Utilities Co. v. Sapp's Adm'r

• Decision Date: 26 May 1933
• Citation: 60 S.W.2d 976,249 Ky. 406
• Parties: KENTUCKY UTILITIES CO. v. SAPP'S ADM'R.
• Court: Kentucky Court of Appeals

60 S.W.2d 976

249 Ky. 406

KENTUCKY UTILITIES CO. v. SAPP'S ADM'R.

Court of Appeals of Kentucky

May 26, 1933

Appeal from Circuit Court, Marion County.

Action by Howard Sapp, as administrator of Howard Sapp, Jr., against the Kentucky Utilities Company. Judgment for plaintiff, and defendant appeals.

Affirmed.

THOMAS and DIETZMAN, JJ., dissenting.

P. K McElroy and J. Walter Hardesty, both of Lebanon, for appellee.

PERRY Justice.

Howard Sapp, as administrator of Howard Sapp, Jr., brought this action against the appellant, Kentucky Utilities Company, to recover damages for the death of his son, Howard Sapp, Jr. resulting from a collision of the car in which he was riding with the defendant's electric light pole, and caused, it was alleged, by the defendant's negligence in erecting and maintaining it in or so close to the highway as to endanger the safety of the traveling public using it.

Upon trial of the cause, verdict and judgment thereon was recovered against the defendant company for $3,000; hence this appeal.

The accident occurred about 9:20 p. m. on the night of May 23 1931, on the Lebanon-Springfield highway at a point about 100 yards beyond the city limits of Lebanon.

Howard Sapp, Jr., a boy eleven years of age, together with his sister, Dixie Sapp, aged fourteen, were at the time of the accident riding with and as the guests of Russell Cooper in a Ford sedan driven by him, and were, after being given a drive out towards Springfield, returning to their home in Lebanon when, in taking a sharp right turn in the road, Cooper's car swerved to his left-hand side of the highway, over which it ran for some 80 feet or more, when the left rear top of the car "side swiped" or collided with the defendant's electric light pole, standing in close proximity to the edge of the highway. All three occupants of the car were by the collision thrown therefrom onto the road, when both Howard Sapp, Jr., and Russell Cooper were instantly killed and Dixie Sapp badly injured.

Seeking a recovery of damages for the death of his son, thus caused, Howard Sapp, Sr., as his administrator, instituted this suit against the defendant, Kentucky Utilities Company, claiming that his son had met his death as the result of the negligence of the defendant in erecting and maintaining its electric light pole in evidence on the Lebanon-Springfield turnpike, at a point in or so close thereto as to interfere with travel thereon, and to so obstruct it as to endanger the safety of the traveling public using the highway.

The evidence as to the distance of defendant's light pole, involved in the collision, from the traveled portion of the highway, is very conflicting. The evidence is that the width of the road at this point, measured from the location of the pole in question, which stood near the edge of the left shoulder of the road, directly across the road to a pole of the defendant erected near the edge of the right shoulder at a point opposite, is 23 feet and some inches. All the witnesses testified that the black top, or paved surface, of the road, was 18 feet in width, and further agreed that on either side of this 18-foot pavement there is an additional space covered with gravel or other metal, called a shoulder, which is used by all kinds of vehicles in traveling the highway, though the witnesses vary in their testimony as to the width of this metal strip on the shoulder and also differ somewhat as to the width of the shoulder extending from the paved surface to the drain upon its outer edge.

The pole in question was erected and maintained by the defendant close to the outer edge of this road shoulder, on which, according to the evidence, there were vehicle tracks close up to the pole, showing its use by traffic as a traveled part of the road, but the testimony, even that given by plaintiff's witnesses, is conflicting as to just how close to the traveled portion of the shoulder defendant's pole stood.

Plaintiff introduced five witnesses who testified upon this point. They variously stated that the distance of the pole from the edge of the shoulder metal, or traveled portion of the road, was 12 inches, 8 inches, or 4 or 5 inches, and even that there was no intervening distance, according to the Rev. T. J. Porter, who stated that the old pole stood in the edge, as he understood it, of the shoulder of the road; that the metal on the shoulder came clear up to where the old pole stood; that the buggy and wagon tracks thereon were within 4 inches of the pole; and that, though he had made no measurements, he knew that the pole was in the shoulder of the road--right in the edge, if not in it. Plaintiff's witness, Marvin Parrott, stated he had measured this distance, and that it was 8 inches from the traveled part of the road to the old pole, and that the new pole, with which the old pole, destroyed by the collision, was replaced, was placed 22 inches further back from the road than was the old pole. By another witness it was testified that the new pole was placed 18 inches further back. By yet another of the witnesses, Jos. Hardesty, this distance from the edge of the traveled road to the pole was placed at 12 inches, and he further testified that the old pole was 18 inches out of line with defendant's other light poles, looking towards Lebanon. The witness, Robert Faulkner, district supervisor of roads, stated that the metal extended approximately to the edge, or within 5 inches of the edge of the shoulder, and, when asked if an automobile traveling on the edge of the shoulder would come in contact with the pole, he answered it depended upon the width of the machine; that some of the big trucks would come in contact with the pole, but he hardly thought a Ford sedan would strike it. He further stated that he had noticed the pole was too near the shoulder of the road, from which it was distant 4 or 5 inches. The witness, Will Hamilton, road foreman for the county, stated that it appeared the travel had pressed the shoulder out towards the pole, and that he had, some two months before, directed the company's local manager to remove the pole because its location in the side drain partly stopped up the culvert, causing the water to overflow the road, and also because it constituted an obstruction of the highway.

Further, it was the theory of the plaintiff that Russell Cooper's car was caused to swerve to the left-hand side of the road, when it collided with defendant's pole, by a "blow-out" of his left rear tire, which tended to "drag" his car from the right to the left side of the road.

Supporting this theory, Miss Dixie Sapp, the only living eyewitness of the accident, testified that she noticed the car, when taking the curve, seemed to go to the left, and that the left side of the car then seemed lower than the right; and that she at the time saw nothing in front of them except the light pole, which she saw just before they struck it. Also Felix Cooper, Russell's brother, stated that at noon on the day of the accident Russell had placed a "boot" on the left rear tire, which had been used for some two years. Also James Robertson, an automobile mechanic who brought in the wrecked car, stated that the left rear casing was found by him off the rim and lying on the ground, and appeared full of cuts.

We have deemed it needful to thus state somewhat at length and in detail plaintiff's evidence because of appellant's contention that it was entitled to a peremptory instruction because it was insufficient to thereon submit the case to the jury. At the conclusion of the plaintiff's evidence, defendant moved for a peremptory instruction, which was refused. Also later, upon the conclusion of all the evidence, and after the trial jury, upon the defendant's motion, had, accompanied by the sheriff and the court, visited and for itself viewed and inspected the physical conditions as to the pole and its nearness to the highway, as found existing at the place of the accident, defendant renewed its motion for a peremptory instruction, which was again refused. Whereupon the court instructed the jury, argument of counsel was heard, and a verdict was returned for the plaintiff in the sum of $3,000, upon which judgment was duly entered. Defendant's motion and grounds for a new trial being overruled, it prosecutes this appeal.

Appellant, by brief of counsel, states that it waives all other alleged errors committed upon the trial except that of the court's refusing to instruct the jury to peremptorily find for it, and states that, if its position on this point is not sustained, the judgment should be affirmed.

Appellant in support of its position thus taken, first argues that the court should have directed a verdict for the defendant because it had violated no duty which it owed to plaintiff's intestate. In support of this contention, it argues that, as negligence is the failure of one person to perform a duty which it owes to another, while the defendant may owe to a class of persons a certain duty, yet, if a person who does not belong to that class is injured, even as the result of the failure of defendant to perform the duty, there is no cause of action. It further correctly states that "under the law in Kentucky, as elsewhere, although an electric light company may have a lawful right to construct a pole line in a highway (as it may be conceded was here the defendant's right), nevertheless it is its duty not to locate its poles within the traveled portion of the highway or so close thereto as to make travel on the highway dangerous for those using the highway in the ordinary course of travel." Therefore, the argument continues, if a traveler using the highway in the usual and ordinary manner is injured by reason of the proximity of a pole to the highway, he...