Lorence v. Omaha Public Power Dist.

• Decision Date: 11 January 1974
• Docket Number: No. 38991,38991
• Citation: 191 Neb. 68,214 N.W.2d 238
• Parties: Emil J. LORENCE, Appellee, v. OMAHA PUBLIC POWER DISTRICT et al., Appellants.
• Court: Nebraska Supreme Court

Page 238

214 N.W.2d 238

191 Neb. 68

Emil J. LORENCE, Appellee, v. OMAHA PUBLIC POWER DISTRICT et al., Appellants.

No. 38991.

Supreme Court of Nebraska.

Jan. 11, 1974.

Syllabus by the Court

1. Power companies engaged in the transmission of electricity, especially electricity of high voltage, are charged with the duty of exercising a very high degree of care to safeguard those whose lawful activities expose them to the risk of inadvertent contact with the electric lines but they are not insurers and not liable for damages in the absence of negligence.

2. One who is capable of understanding and discretion and who fails to exercise ordinary care and prudence to avoid defects and dangers which are open and obvious is negligent or contributorily negligent.

3. To constitute want of due care it is not required that a person should have anticipated the exact risk which occurred, or that the peril was a deadly one; it is sufficient that he places himself in a position of a known danger where there was no need for him to be or that he knew or should have known that substantial injury was likely to result from his act.

Fraser, Stryker, Marshall & Veach, Omaha, for appellants.

Martin A. Cannon, Matthews, Kelley, Cannon & Carpenter, P.C., Omaha, for appellee.

Heard before WHITE, C.J., and SPENCER, BOSLAUGH, SMITH, McCOWN, NEWTON and CLINTON, JJ.

WHITE, Chief Justice.

This is an action for damages for bodily injuries resulting from electrical shock and burns. The injuries occurred while the plaintiff, Emil J. Lorence, was working on a billboard sign located near an electric power line constructed and maintained by the defendant, Omaha Public Power District. The jury verdict was for the plaintiff. The defendant has appealed from the overruling of the motion for directed verdict and judgment notwithstanding the verdict. We find that the plaintiff was contributorily negligent as a matter of law and reverse and dismiss.

Lorence was employed by Imperial Outdoor Advertising Company on April 29, 1969, the day of the accident. Lorence had been employed by that company or its predecessors since the late 1940's as a sign painter, painting foreman, and plant superintendent. He had served as plant superintendent for several months prior to the accident. This position involved supervision of all outdoor billboard signs. Lorence testified that he had been up on a lot of illuminated signs over the years.

On the day of the accident, Lorence was showing a newly hired electrician, Paul Brown, various signs. During the morning, Lorence and Brown had worked on several signs. They worked out of a pickup truck equipped with various electrical materials. A 40-foot extension ladder in two 20-foot sections was carried on the racks of the pickup. After lunch, Lorence and Brown went to Forty-second and F Streets and parked the truck in a large parking lot underneath a sign to see if the lights were working.

The sign was erected in 1964. The face of the sign runs east and west and located at the bottom of the sign face are two foot-runs. Workmen stand on these footruns while working on the face of the sign. There is a footrun on the north and the south side of the sign face. Approximately 8 feet below the footruns is an x-shaped cross member which which helps support the sign structure. There is a permanently affixed ladder which runs from the cross member up to the footruns. The bottom of this affixed ladder and the cross member are 20 feet above the ground. The sign is illuminated by lights which run parallel to the face of the sign and approximately 6 feet away. The light fixtures are supported by braces running horizontally from the top of the sign out of the fixtures. These fixtures are approximately 12 feet above the footruns.

The primary line is located to the north of the sign and runs east and west. Below the primary line there are several secondary overhead lines running east and west. The primary line is lower than the top of the sign. The distance from the light fixture on the north side of the sign to the primary line is 8 feet while the distance from the footrun to the primary line is about 9 feet.

Lorence and Brown turned on the sign lights. Upon looking up at the sign, they observed that the lights on the south side of the sign were working, but the lights on the north were out. They took one 20-foot section of the ladder off the truck and Lorence laid it up against the sign structure so he could climb up to the permanently affixed ladder and the cross member. He climbed up until he was standing on the x-shaped cross member. While standing on this cross member below the footrun, Lorence reached down and pulled the 20-foot extension ladder up vertically through the space between the footrun and the northern face of the sign. He had one arm looped through the permanently affixed ladder leading to the footrun. Brown testified that while Lorence was holding on with one arm, he reached down and pulled the ladder up with his other arm and pushed the ladder vertically through the opening between the sign and the footrun. Just prior to the contact with the...