Lancaster v. Potomac Edison Co. of West Virginia

Decision Date13 November 1972
Docket NumberNo. 13087,13087
CourtWest Virginia Supreme Court
PartiesMary M. LANCASTER, Administratrix of the Estate of Daniel K. Lancaster v. The POTOMAC EDISON COMPANY OF WEST VIRGINIA, a corporation.

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.' Point 3 Syllabus, Musser v. Norfolk and Western Railway Company, 122 W.Va. 365 (9 S.E.2d 524).

2. 'Those who operate and maintain wires charged with dangerous voltage of electricity are required to exercise a degree of care commensurate with the dangers to be reasonably apprehended therefrom; but they are not insurers against all injury therefrom.' Point 1 Syllabus, Maggard v. Appalachian Electric Power Company, 111 W.Va. 470 (163 S.E. 27).

3. 'A company maintaining an electric line, over which a current of high and dangerous voltage passes, in a place to which it knows or should anticipate others lawfully may resort for any reason, such as business, pleasure or curiosity, and in such manner as exposes them to danger of contact with it by accident or inadvertence, is bound to take precaution for their safety by insulation of the wire or other adequate means.' Point 2 Syllabus, Love v. Virginian Power Company, 86 W.Va. 393 (103 S.E. 352).

4. 'If, when instructions are read as a whole, it is apparent that they could not have misled the jury, the verdict will not be disturbed, though one may be susceptible of a doubtful construction while standing alone.' Point 2 Syllabus, Mitchell v. Virginian Railway Company, 116 W.Va. 739 (183 S.E. 35).

5. 'If an instruction given to the jury is not a binding instruction and some element is omitted in the instruction which should have been included, it is not reversible error to give such instruction if other instructions given by the court contain or include such omitted element.' Point 7 Syllabus, Lawrence v. Nelson, 145 W.Va. 134 (113 S.E.2d 241).

6. 'When the facts which bear upon the issue of contributory negligence are disputed or conflicting, or if undisputed are such that reasonable men may draw different conclusions from them, the question of contributory negligence is for the jury.' Point 5 Syllabus, Wright v. Valan, 130 W.Va. 466 (43 S.E.2d 364).

7. 'It is the peculiar and exclusive province of a jury to weigh the evidence and to resolve questions of fact when the testimony of witnesses regarding them is conflicting and the finding of the jury upon such facts will not ordinarily be disturbed.' Point 2 Syllabus, Skeen v. C and G Corporation, W.Va. (185 S.E.2d 493).

Martin & Seibert, Clarence E. Martin, Jr., Martinsburg, for appellant.

Avey, Steptoe & Perry, Roger J. Perry, Charles Town, for appellee.

KESSEL, Judge.

In this action for wrongful death instituted in the Circuit Court of Jefferson County by Mary M. Lancaster, administratrix of the estate of Daniel K. Lancaster, as the plaintiff, against The Potomac Edison Company of West Virginia, a corporation, as the defendant, the circuit court entered judgment on November 11, 1970, upon a jury verdict in favor of the plaintiff in the amount of $11,171.98. It is from this judgment that the defendant prosecutes this writ of error.

Hereinafter in this opinion, Mary M. Lancaster, administratrix of the estate of Daniel K. Lancaster, the plaintiff, will sometimes be referred to as the plaintiff or as the appellee; the deceased, Daniel K. Lancaster, will sometimes be referred to as the decedent; and The Potomac Edison Power Company of West Virginia, a corporation, the defendant, will sometimes be referred to as the defendant or as the appellant.

The primary questions presented for decision involve the sufficiency of the proof to support the verdict and the action of the trial court in granting certain instructions in behalf of the plaintiff and in refusing to give certain instructions in behalf of the defendant as they were originally offered.

This case arises out of a fatal accident of the plaintiff's decedent, an eighteen-year old youth, who had been engaged in painting the roof of a house, belonging to Mr. and Mrs. Robert Wallich, in Harpers Ferry, West Virginia. The decedent was electrocuted when he came in contact with electric wires, which were strung near the eaves of the roof of the house and which were owned and maintained by the defendant.

On the day prior to the fatal accident, Calvin Alger employed the decedent and Larry T. Shumaker to assist him in finishing the painting of the Wallich home. On the morning of the accident, Shumaker and the decedent met Alger and assisted him in carrying a borrowed wooden ladder to the Wallich residence to use in their work. Alger and his brother had already done most of the painting. After mixing their paint, Alger and the decedent set up the wooden ladder in front of the Wallich residence and proceeded to finish painting the roof of the house.

Alger testified that, during the morning, he had been painting the roof of the house and that the decedent had held the ladder for him; and that the decedent then volunteered to paint the remainder of the three panels of the roof.

As a result of the manner in which the roof was being painted, it was necessary to turn around and dip the paint brush in a bucket of paint which was tied on a rope about six or eight feet down from the top of the ladder. Alger stated in his testimony that, after the decedent had been painting for about three or four minutes, he turned around to dip his brush in the bucket and a flash occurred and the decedent fell upon the roof.

The wire with which the decedent came in contact was approximately 12 to 18 inches from the house at the apparent point of contact. There was a distance of approximately 20 feet from the sidewalk to the wire. The wire was uninsulated and carried 12,000 volts of electricity. A former employee of the defendant, who testified in behalf of the defendant, stated in his testimony that the normal distance between a voltage wire and a building was not less than 12 inches nor more than 18 inches and that all of the wires in the defendant's distribution system were uninsulated. From the street or upon ascending the ladder, the wife was clearly visible to anyone. The wire was, however, in back of the decedent and not visible to him when he was in the process of painting the roof of the house. Since the day of the accident and prior to a view by the jury, the wires have been relocated by the defendant to a point approximately two feet and eight inches away from the Wallich residence.

Larry Shumaker testified that, upon his arrival at the Wallich home, he had mixed his paint and then painted the roof of a little shed in the rear of the house and the back porch of the house; that he was then told to paint the trim on the windows in the gable ends of the house; that he tried to use an aluminum ladder to reach the gable, but, finding the ladder too short, he went through the house to the upstairs and sat in a window and began to paint; that at no time did he see Alger ascend the ladder; that he did not hear Alger say anything to the decedent while the decedent was on the ladder; that he heard a 'buzzing' noise and saw a puff of smoke; that he ran down the steps and onto the street; and that when he looked up he saw the decedent standing 'about two rungs from the top of the ladder, bent over with his face in the spouting.'

Alger testified that on the day he employed Shumaker and the decedent, the told them that, when he and his brother were moving an aluminum ladder which they had been using to paint the Wallich house, the ladder came in contact with one of the electric wires and threw them into the street, spilling the paint. He further testified that, after the decedent volunteered to ascend the ladder and paint the remaining panels, Alger asked him if he was 'scared to go up', and the decedent replied that he was not afraid; that he warned the decedent to 'watch that wire'; that he continued to warn the decedent about the wire while he was standing on the ladder; but that he 'never thought there was any more danger to it by being on a wooden ladder.'

Shumaker testified that he did not learn about the incident involving Alger's brother until approximately one week after the decedent's death. Upon cross-examination by counsel for the defendant, Shumaker denied having given a portion of a signed statement shortly after the accident. The statement was read in its entirety to the jury, and the pertinent portion of it is as follows: '* * * On day I was hired by Calvin Alger, he did not mention the accident he had when he and his brother came in contact with the line. On Wednesday Calvin Alger told me and Daniel Lancaster about the spilled paint. Calvin said that the ladder knocked his brother into the road and spilled the paint when the ladder came in contact with line.'

The case was submitted to the jury, who viewed the scene of the accident, upon the issues of the primary negligence of the defendant, the contributory negligence of the decedent, and the assumption of the risk by the decedent.

Counsel for the defendant contends that the trial court erred in refusing to grant his two motions for a directed verdict, one made when the plaintiff rested her case and the other at the end of all the evidence; in granting Plaintiff's Instructions Nos. 1, 2, 3, 5, 6, and 7, as amended by the trial court; in refusing to give Defendant's Instructions Nos. 3, 4, and 5, as originally offered, and in granting them as amended by the trial court; and in admitting the testimony of the decedent's mother that he was fearful of high places and did not like to take chances.

In order to determine whether the trial court was in error in refusing to direct a...

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    ...looking for lost livestock on own property came into contact with sagging high voltage wire). See also Lancaster v. Potomac Edison Co., 156 W.Va. 218, 192 S.E.2d 234 (1972) (house painter on ladder came in contact with high voltage wires close to house); Humphreys v. Raleigh Coal & Coke Co.......
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    ...if other instructions given by the court contain or include such omitted element.' Syllabus point 5, Lancaster v. Potomac Edison Company of West Virginia, W.Va., 192 S.E.2d 234 (1972); syllabus point 7, Lawrence v. Nelson, 145 W.Va. 134, 113 S.E.2d 241 4. While opinion evidence is not gener......
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