LeClere v. Iowa Elec. Light & Power Co.

• Decision Date: 15 January 1963
• Docket Number: No. 50609,50609
• Citation: 254 Iowa 779,119 N.W.2d 203
• Parties: Ernest D. LeCLERE, Appellant, v. IOWA ELECTRIC LIGHT AND POWER COMPANY and Helen Hennessey, Appellees.
• Court: Iowa Supreme Court

Page 203

119 N.W.2d 203

254 Iowa 779

Ernest D. LeCLERE, Appellant, v. IOWA ELECTRIC LIGHT AND POWER COMPANY and Helen Hennessey, Appellees.

No. 50609.

Supreme Court of Iowa.

Jan. 15, 1963.

Francis J. Pruss, Cedar Rapids, for appellant.

Lynch, Dallas, Smith & Harman, Cedar Rapids, for appellee Iowa Electric Light & Power Co.

Simmons, Perrine, Albright Ellwood & Neff, Cedar Rapids, for appellee Helen Hennessey.

LARSON, Justice.

The plaintiff, Ernest D. LeClere, brought this action in three divisions to recover for personal injuries against the defendants, Iowa Electric Light and Power Company, herein referred to as the Company, and Helen Hennessey. In the first division he alleged specific negligence as to the Company, in the second as to Hennessey, and in the third specific acts of negligence as to both defendants which concurred to cause plaintiff's injuries. At the close of plaintiff's case both defendants moved for a directed verdict. Verdict was directed as to the Company only. The court submitted plaintiff's claim against Hennessey and her counterclaim against plaintiff to the jury. It returned a verdict denying recovery to both parties. Plaintiff's motion for a new trial was overruled and he appealed.

The issues raised in this appeal are: (1) Is there sufficient competent evidence in the record to support any of the specifications of negligence alleged so as to require their submission to the jury as against the defendant Company, and (2) did the court err in submitting the counterclaim of the defendant Hennessey? We find no reversible error.

In view of the alleged errors, a detailed examination of the relevant evidence is required. Perhaps it should first be noted that the electric wire involved was privately owned, a part of the farm wiring system and not the Company's transmission line.

Plaintiff testified that he owned and lived on a farm three miles east of Coggan, Iowa, and that a secondary road running east and west divided the farm buildings, the house and some outbuildings being on the north side, and the barn and some other buildings on the south. His farm was served with electrical energy by the defendant Power Company from a high line running along the north side of the road. From its transformer post lines ran to the house and to buildings and structures on the farm. The line involved ran from the transformer post to the windmill, thence back to an insulator attached to the Company pole, thence across the highway to a pole maintained by plaintiff in connection with his buildings on the south side thereof.

On the afternoon of June 8, 1958, a severe windstorm blew down a part of a large tree near the line to the windmill, tearing the line from the insulator attached to the Power Company pole so that it then ran from the windmill to the ground and thence across the road to the pole on the south side of the road. When the storm ceased, plaintiff, observing the resulting dangerous condition to traffic, placed a two-by-four some six feet tall under the wire on the north bank of the road which so stretched the wire that vehicles could pass safely under it. He testified: '* * * That wire when I first observed it was down over the highway at rather a low level and the only way that cars could get around it then would be to go almost into the ditch and squeeze under it. On the north side of the road it would be almost down to the road within about a couple of feet. * * * To remedy that situation I got ahold of a board which was 6 feet 2 1/2 inches tall and put it under there good and tight. That resulted in elevating that lone wire so that a vehicle would have to be awfully high to catch it. In my judgment there was no danger whatever of the wire being struck by a vehicle passing under it.'

Plaintiff then contacted Mr. Boyle, a repairman for the Power Company in Central City, and being a thrifty and calculating person he anticipated the job ahead. He testified: '* * * Before he (Boyle) came out there I took my axe and trimmed away these limbs so that there was not more than six inches of the limb that was holding the wire down. It was my idea that all you would have to do was to grab ahold of the wire and pull it out and put it right back up to the pole. You would have to slide it out some under where it was pinned down. By following this method all you had to do was fasten the wire back up on the pole again. It would be the right length and everything. That was the reason I did this work with my axe to speed up the work.' (Emphasis supplied.) The plan was excellent. The time and manner of its execution gave rise to this controversy.

Mr. Boyle had other calls to answer and did not arrive at plaintiff's farm until about 9 o'clock P.M. Arriving from the west, Boyle drove his truck into the entrance of the north driveway and put his flood light on the transformer pole. When plaintiff saw this, he went for his cap and after that had no firm recollection of what occurred. He testified: '* * * well I had it in my mind to go out and show him how them wires were, and figured I'd just pull them out of there and put it up, and it seems like I have a faint recollection that I was reaching down for the wires and then,--and then stooping over for something, and then I don't--there was either a crash or something, and that was the last.' (Emphasis supplied.)

A Mr. Fleming accompanied Boyle to the farm and he remained in the truck while the unfortunate events took place. Called as plaintiff's witness, he testified he did not see anyone touch the wire prior to the time it was struck by the Hennessey car. He saw the wire shortly after they arrived and then plaintiff and Boyle were near it. He said a short time later the Hennessey car, traveling at about 40 or 45 miles an hour, approached from the west and collided with the lowered wire. After the collision, he said it slowed to almost a stop and then continued on its way.

Mr. Boyle, also called on Behalf of plaintiff, testified that he was employed as the Power Company lineman, that he arrived at plaintiff's farm about nine o'clock that evening, and that he did not observe the low-hanging wire until it was pointed out to him by plaintiff. He had parked his truck on the north side of the road and fixed his flood light on the Company's pole to plaintiff's premises. When he first saw the wire, it was suspended over a board and was high enough for him to walk under it. He was 5 feet 8 1/2 inches tall. He testified he never saw the wire off this prop, or two-by-four. He further testified he saw plaintiff take hold of the wire, but that he did not participate in that undertaking. In reply to the question, 'Did you at any time take ahold of this wire when it was at the height of six feet two inches above the ground, as you say it was when you walked under it? Did you take ahold of that wire at any time or touch that wire or anything between the time you observed it there and the time you saw Mr. LeClere come along and grab ahold of it? A. No, I did not.' He further testified that when the accident occurred, the plaintiff was holding this wire. He thought the wire was about knee high when he observed plaintiff holding it just before the accident, that it was 'just in seconds' after he saw plaintiff pull the wire out from beneath the tree that the collision occurred which threw plaintiff to the ground painfully injuring him.

At the time the wire was hit Boyle said he was about 15 or 20 feet west of plaintiff near the transformer pole. While plaintiff had no clear recollection, it appears he admitted it was his intention to go out to the tree, pull the wire from under the branches holding it down, and have the lineman replace it on the transformer pole. The repairman's job would then be short and simple. Plaintiff's injury discloses that at the time the wire was struck by the Hennessey car he had the wire in his hand, and his feet were astraddle or near it.

It is the Company's contention that under this evidence, or lack thereof, the court was compelled to sustain the Power Company's motion to direct a verdict in its favor. It maintains the plaintiff had failed to prove by any evidence that this defendant or its employee had removed the prop which plaintiff had placed under the wire to prevent it from sagging so low over the roadway so as to be struck by oncoming vehicles, that there was no showing Boyle had undertaken any repair work at the time of the accident, and that there was no showing it had a duty to look out for, warn, or stop vehicles approaching on the road, or to warn plaintiff of his precarious position should any vehicle pass by at that time. Appellee Power Company also contends is clearly appears plaintiff failed to offer any proof of his own freedom from contributory negligence, but on the contrary it shows conclusively that he was guilty of such negligence. We think the evidence sustains both contentions.

Plaintiff's burden in seeking recovery from each of the defendants was to plead and prove, not only negligence on the part of each defendant, but also his freedom from negligence which contributed to his injury and damage. Fleming, of course, was an eyewitness.

I. There could be no negligence of the defendant Power Company in the absence of the breach of some duty which it owed to the plaintiff. Lagerpusch v. Lindley, Iowa, 115 N.W.2d 207, and citations. At the conclusion of plaintiff's evidence the trial court found no such breach and, although it recognized the lack of affirmative evidence as to the issue of contributory neglience, based its decision on the failure to submit substantial proof of any Company fault.

To sustain a recovery on a theory that the injury was caused by the negligence of the Company employee Boyle, it must appear that there existed, at the time and place where the injury was inflicted, a duty on the part of the defendant and a corresponding right in the plaintiff for the protection of the latter. See 38...