Litchford v. Iowa-Illinois Gas & Elec. Co.

• Decision Date: 06 March 1956
• Docket Number: No. 48850,IOWA-ILLINOIS,48850
• Citation: 75 N.W.2d 346,247 Iowa 947
• Parties: L. J. LITCHFORD and Ronald T. Schaefer, Appellees, v.GAS AND ELECTRIC COMPANY, Appellant.
• Court: Iowa Supreme Court

Page 346

75 N.W.2d 346

247 Iowa 947

L. J. LITCHFORD and Ronald T. Schaefer, Appellees, v. IOWA-ILLINOIS GAS AND ELECTRIC COMPANY, Appellant.

No. 48850.

Supreme Court of Iowa.

March 6, 1956.

Rehearing Denied May 14, 1956.

Ries & Osmundson, Iowa City, and Barnes, Wadsworth, Elderkin & Locher, Cedar Rapids, for appellant.

Messer, Hamilton and Cahill and D. C. Nolan, Iowa City, for appellees.

WENNERSTRUM, Justice.

Plaintiffs' action is at law. They seek damages as the result of injuries received by one of them when a paint spray gun held by the injured party was near to or touched an electric line constructed by the defendant on the farm property of William Heiber. The case was tried to a jury which returned a verdict for the defendant. Plaintiffs filed a motion for new trial. It was sustained. The defendant has appealed.

L. J. Litchford, one of the plaintiffs, was the individual who was injured. He might be termed the primary plaintiff. Ronald T. Schaefer, the other plaintiff, at the time of the commencement of the suit was a student at the University of Iowa. His home is in Rockford, Illinois. He received from Litchford an assignment of two per cent of Litchford's claim. The defendant is an Illinois corporation.

Litchford met Leonard Wells in or near Iowa City. The latter is a painting contractor who was then operating in Johnson County. Wells taught Litchford and an associate, one Nichols, to use a paint spray gun and they were instructed to observe electric lines when painting farm buildings. They were also advised concerning transformers installed on farm properties and knew higher voltage was carried on an electric line before it reached the transformer than beyond it.

The defendant company, prior to the accident, had constructed and maintained a distribution and transmission line from Iowa City to the town of Morse by virtue of a franchise issued to it by the State Commerce Commission. Section 489.1, 1950 Code. The line extended to and passed the Heiber farm and carried 4800 volts. From the transmission line in the highway an extension line was constructed for approximately 35 rods along a lane and over the Heiber farm property to the residence and farm buildings. This construction was by reason of an agreement entered into by the land owner and the defendant company on December 12, 1949. It was therein in part provided: '1. The party of the second party (defendant company) will construct, maintain, and own an electric distribution line, hereafter called 'extension,' including adequate transformer capacity not to exceed 5 KVA per customer, service lines, and meters, * * *; except it is understood and agreed that when such premises are located away from the highway on which the rural extension line is located so as to require a service longer than 150 feet from said extension, the customer served on such premises will provide and maintain at his own expense all the necessary poles, lines, wires and other necessary facilities from the highway to his premises which is in excess of 150 feet. The extension herein referred to is to be located along the highway as indicated on the blue print attached hereto and made a part hereof. All of the extensions and facilities herein contemplated to be constructed, maintained and owned by the party of the second part, without any right, claim or demand of any of the parties of the first part herein.'

The accident took place on the Heiber farm. The line to the buildings served was in excess of 150 feet mentioned in the agreement. The distance from the machine shed, where Litchford was injured, to the highway in front of the farm is slightly less than 600 feet. It should be stated there is no claim by any of the parties herein of any liability on the part of William Heiber. The shed was located at a point on the lane closer to the highway than the transformer and the ridge of it was approximately 15 feet from the ground. The transformer was located on a pole approximately 50 1/2 feet beyond this building. There are two wires extending from the highway and along the lane to the residence and farm buildings and the wire nearer the ridge of the shed was approximately six feet above the south end of it.

The plaintiffs' petition was filed in three counts. Count one alleged: under the provisions of section 489.15, 1950 Code, the defendant company was legally liable and responsible for the accident and resulting injury and damages sustained by L. J. Litchford. Count two was based on specific allegations of negligence and count three incorporated the theory of res ipsa loquitur. The trial court submitted the case to the jury alone on count two of the plaintiffs', petition.

I. Chapter 489, 1950 Code, is entirely concerned with electric transmission lines, the granting of franchises by the state commerce commission for the erection, maintenance, and operation of them, and the right of eminent domain by companies granted a franchise. Section 489.15, 1950 Code, referred to in count one of plaintiffs' petition is of particular import in this litigation and 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. Such presumption shall not exist in favor of employees of the person or corporation operating said transmission line who are charged with or engaged in the construction, reconstruction, repair, or maintenance thereof, unless otherwise provided by the employers liability and workmen's compensation laws of the state.'

In our disposition of this case we do not deem it necessary to set forth the circumstances which resulted in Litchford's injuries or to comment on the extent of them. It is sufficient to state the burns received by him were of such a nature as to necessitate the amputation of a portion of the left forearm.

In its written ruling on the motion for a new trial the court stated at the time of the trial it had refused to submit count one of plaintiff's petition. This is the count wherein section 489.15, 1950 Code is referred to and which pertains to the presumption of negligence on the part of an owner of a transmission line. The trial court further stated in its ruling it had ruled favorably to the plaintiffs, as is shown by the record, in considering this code section earlier on an application for adjudication of points of law.

In passing on the question whether the trial court erred in sustaining the motion for a new trial on the grounds count one of the plaintiffs' petition should have been submitted to the jury we necessarily must give consideration to the effect of the court's prior ruling on defendants' application for adjudication of points of law. 58 I.C.A.Rules of Civil Procedure, rule 105.

In its application the defendant maintained section 489.15, 1950 Code, applies only to, '* * * transmission lines running 'along, over or across any public highway or grounds outside of cities and towns' as provided in section 489.1 * * *'. It is also therein contended the electric line by which Litchford was injured passed over the private property of William Heiber and the code section in question is not applicable to lines erected and maintained over private property.

Rule 105, R.C.P. is as follows: 'The court may in its discretion, and must on application of either party, made after issues joined and before trial, separately hear and determine any point of law raised in any pleading which goes to the whole or any material part of the case. It shall enter an appropriate final order before trial of the remaining issues, adjudicating the point so determined, which shall not be questioned on the trial of any part of the case of which it does not dispose. If such ruling does not dispose of the whole case, it shall be deemed interlocutory for purposes of appeal.' (Italics supplied.)

It will be observed the order pertaining to the adjudication of the law points constitutes a final order, '* * * which shall not be questioned on the trial of any part of the case of which it does not dispose. * * *' In Cook's Iowa Rules of Civil Procedure, page 701 there is set forth the advisory committee's comment which refers to the finality of separate adjudication of law points under the foregoing rule. In the author's comments reference is also made to the finality of such a ruling. In Hubbard v. Marsh, 239 Iowa 472, 474, 32 N.W.2d 67, we commented on this rule and the manner in which an appeal could be taken when an adjudication of points of law was involved. Inasmuch as there was no appeal in the manner suggested in the cited case the trial court's order and ruling in the instant one became final for the purpose of the trial and should have been followed.

The order made by the trial court on its adjudication of points of law was a finality and the trial court could not change its ruling on this point and thereby refuse to submit the theory of the applicability of section 489.15, 1950 Code, as set forth in count one of the petition. And in so changing its ruling it committed error which would justify the granting of a new trial. Although the trial court did not comment upon the finality of its prior order in sustaining the motion for new trial we hold by reason of the foregoing there was no error on the part of the trial court in sustaining it.

We therefore affirm.

Affirmed.

LARSON, C. J.,...