Love v. Virginian Power Co.
| Decision Date | 04 May 1920 |
| Parties | LOVE v. VIRGINIAN POWER CO. |
| Court | West Virginia Supreme Court |
Submitted April 14, 1920.
Syllabus by the Court.
Where an amended declaration, complete in itself, does not refer to or in any manner adopt or make preceding declarations parts of it, the latter will be considered and treated as withdrawn and abandoned.
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.
A declaration alleging that defendant, for a period of two years or more, permitted its uninsulated high-power transmission cables, carrying a current of dangerous voltage to remain within four feet of the top of a pile of slate slag, or other refuse from a nearby coal mine, lawfully placed there subsequent to the erection of the cables by the owner or lessee of the tract over which they passed, when defendant knew or should have known that children of miners living in that neighborhood had long been accustomed to play on the pile, but made no effort to safeguard and protect them by the insulation, elevation, or removal of its lines to another portion of the tract, as a result of which failure plaintiff's intestate, a child of tender years, was killed, states a cause of action.
Action by George Love, administrator, etc., against the Virginian Power Company. Demurrers to original and amended declaration sustained and rulings certified. Rulings reversed, demurrer to second amended declaration overruled, and case recertified.
George Love, of Fayetteville, for plaintiff.
Osenton & Lee, of Fayetteville, and Payne, Minor & Bouchelle, of Charleston, for defendant.
There are in the record an original and two amended declarations demurrers to each of which the court sustained and certified its rulings here to test their correctness. As the pleadings do not in any manner or for any purpose refer to or make the preceding ones parts thereof, only the last can be considered upon this review, according to the principles established by Roderick v. Railroad Co., 7 W.Va. 54; Bartley v Western Maryland Ry. Co., 81 W.Va. 795, 95 S.E. 443; Kinder v. Boomer Coal & Coke Co., 82 W.Va. 32, 95 S.E. 580; Shafer v. Security Trust Co., 82 W.Va. 618, 97 S.E. 290; Roberts v. United Fuel Gas Co., 99 S.E. 549, 550.
Besides the defendant Virginian Power Company, the Sunday Creek Company is interested in the result of the action only indirectly, if at all, as defendant's lessor. The latter in turn is lessee of the Kanawha & Hocking Coal & Coke Company, the owner of the land where the accident fatal to plaintiff's intestate occurred, thereby making defendant sublessee of that company. The authority conferred upon the Virginian Power Company by its lessor was the right to construct, maintain, and operate in the usual manner a system of electric wires or combination of wires over and upon the strip of land leased to it for a right of way, part of a large boundary operated by the Sunday Creek Company under its lease from the Kanawha & Hocking Coal & Coke Company, in subordination, however, to the reserved right of the Sunday Creek Company to use and enjoy the strip as and whenever necessary in the exercise of its right to mine, remove, and market the coal contained in the entire tract.
The source from which defendant supplies the current of electricity is its plant located at Cabin Creek Junction in Kanawha county, and from that point as a generating center it distributes the current to its consumers and patrons by high-power transmission cables, and for that purpose occupies the portion of the land leased to it, and especially that part thereof near the village of Harewood in Fayette county, where the mother of decedent and the decedent also resided on the date of his death, and where the Kanawha & Hocking Coal & Coke Company or its lessee, the Sunday Creek Company, conducted mining operations through a nearby mine opening. The slate, slag, and other refuse usually and inevitably incident to such operation the latter company hauled and dumped under defendant's wires near Harewood in such quantity and to such an extent that eventually, plaintiff avers, there were but four feet between the surface so elevated and the wires. This condition continued during a period of two years prior to the accident complained of, but for which accumulation it probably would not have occurred, as defendant's wires appear to have been constructed properly in the first instance and at a safe distance above the ground.
The cause of action averred in the second amended declaration is comprehended in the following additional facts, the truth of which, if well pleaded, defendant by the demurrer admits, and what is said heretofore and what may be said hereafter is based upon that concession, and of course not otherwise: For a period of at least two years immediately preceding the accident, defendant knew, or was possessed of such source of information that it should have known, of the nearness of the surface of the accumulated slate or refuse pile to its uninsulated and highly charged electric wires; the habit or custom of the community children, including decedent, to assemble for play and amusement upon and about the slag dump unhindered by inclosures of any sort; and the probability of contact by them with the wires at that point; and with this notice or means of knowledge of the danger to them negligently failed to perform its duty towards decedent, and did nothing to prevent such accident; whereby and by reason whereof plaintiff's intestate, a child seven years of age, while playing on the pile, received the injury from which his death ensued. Decedent's father, an employé and tenant of the coal company owning or operating the tract, together with his family, occupied a house thereon near the slag pile until his death by mine accident a short time prior to the fatal injury with which we are concerned, and after his death his widow and son, the decedent, continued to occupy the building rent free with the company's permission.
If plaintiff can by competent and adequate proof establish the truth of the facts averred and now admitted to be true, when traversed by a plea and denied by testimony to the contrary, are they such as legally justify the recovery sought by this action? If to that question the law warrants an affirmative answer, the ruling on the demurrer to the second amended declaration is erroneous; otherwise it is right.
Though useful in many ways and for various purposes indispensable in these days of varied activities, the force called electricity is an instrumentality of a highly dangerous character, and, if not properly confined in its place, it may maim or ruthlessly destroy life and property. Although generally serviceable and capable of beneficial use when properly insulated and controlled, yet, when defectively insulated or carelessly employed, the current resembles the legendary thunderbolts of mythical deities, destroying all who cross its path. The more inherently powerful an instrumentality, the greater the duty to exercise a commensurably high degree of diligence and care to prevent danger from its employment in the varying phases of business activities to which it is adapted and applied. Whenever and by whatever mode or method any dangerous agency is handled, the one responsible therefor is necessarily and legally bound to the highest measure of skill and care in dealing with it, to the end that the lives and the property of others without fault may not be injured or destroyed by contact with it.
Defendant had a lawful right to construct and maintain its wires over the property in question, a right conferred by a valid lease. At the time of erection their distance above the ground was apparently sufficient to remove all danger of contact with those traveling in that vicinity. But the lease agreement granting to defendant the strip or right of way over the property and giving it authority to keep the same free from obstructions specifically makes defendant's rights therein subordinate to those of the lessor and reserves to the latter the right to utilize the strip whenever necessary to the efficient and effective operation of its mining plant. It was pursuant to this provision that the coal company deposited the slate and slag under defendant's wires, continuing to do so until the top of the pile was not more than four feet below the uninsulated transmission cables carrying an electric current of 45,000 volts. Decedent lived near by with his mother in a...
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