Maggard v. Appalachian Electric Power Co.
| Decision Date | 02 February 1932 |
| Docket Number | 7108. |
| Citation | 163 S.E. 27,111 W.Va. 470 |
| Parties | MAGGARD v. APPALACHIAN ELECTRIC POWER CO. |
| Court | West Virginia Supreme Court |
Submitted January 27, 1932.
Syllabus by the Court.
Power company operating and maintaining wires charged with dangerous voltage of electricity, though not insurer against all injury therefrom, must exercise degree of care commensurate with danger to be reasonably apprehended.
Where power company, upon request of road contractor, raised transmission wires above road and above steam shovel boom to satisfaction of contractor, power company held not required to reasonably anticipate that contractor would elevate end of boom near wires and send its employee up boom into imminent danger from contact with wires.
1. 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.
2. Where the owner and operator of high-powered electric wires has, upon the request of a construction company, engaged in excavating a public road thereunder by the use of a steam shovel, raised the wires to a height of 32 feet above the road and above the reach of the shovel boom to the apparent satisfaction of the construction company, he cannot reasonably anticipate that the construction company would thereafter, with gross negligence, elevate the end of the boom of the shovel near the wires and send one of its workers up the boom into imminent danger from contact with the wires.
Error to Circuit Court, Raleigh County.
Action by Carlton Maggard against the Appalachian Electric Power Company. Judgment in favor of the plaintiff, and the defendant brings error.
Judgment reversed, verdict set aside, and a new trial awarded.
File Goldsmith & Scherer, of Beckley, for plaintiff in error.
Ben H Ashworth and Clay S. Crouse, both of Beckley, for defendant in error.
Appalachian Electric Power Company (hereinafter called power company) prosecutes error to a verdict and judgment against it in favor of Carlton Maggard for personal injuries received by him caused by contact with one of its high-tension wires.
On October 15, 1930, Maggard was working for a construction company as fireman on a steam shovel which moved about on caterpillars on its own power. The shovel was engaged in excavating a passageway for a state highway under the Piney Branch of the Chesapeake & Ohio Railway Company on Piney river at the junction of Beaver creek with Piney river in Raleigh county. The fill, or embankment, on which the railroad was laid was about 20 feet high and the shovel was located at the foot of the fill. The shovel would bite into the fill and then carry the dirt by means of the boom and deposit it between the railroad and the river near by, making a new fill of about 3 feet in height on the bed of the new highway. A cofferdam near the river was being constructed for a new bridge, and the shovel at the time of the accident was in use to clean out the cofferdam by the use of a clamshell form of shovel, and it became necessary to disconnect the clamshell from the end of the wire cable which extended from the drum along the boom through a sheave wheel at its end and thence to the clamshell (or whatever other form of shovel or attachment was being used at the end of the cable.) The clamshell was rested on the ground, and in order to detach it from the cable, it became the duty of Maggard to climb the boom, which, at that time, was almost perpendicular, throw the cable from the sheave wheel, and give the proper slack to the cable. The end of the boom was brought to rest high in the air and very close (probably two feet) to the wires of the power company carrying 2,300 volts, and in throwing the cable from the sheave wheel, Maggard or the cable came in contact with the high-voltage wire and he was severely burned. He says his neck came in contact with the wires. These wires had been there for several years before the construction of the highway began, by right of contract with the landowner. At the time the highway construction began they were supported by steel poles and about 29 feet above the ground and ran almost parallel with, and about 40 feet from the railroad; the poles being set near the foot of the railroad fill or embankment. The new highway crossed under these wires at an angle of about 25 degrees. The land between the railroad and river was low and swampy, and not used for any purpose by any one else, and no one lived near there. The power line and its equipment was of standard material and construction. The landowner had given verbal permission for the construction of the highway, but there had been no permission or right given by the power company for the road over its easement. No protest against its construction from the power company appears to have been made. One of the steel poles and a guy wire supporting it appear to have been located at the foot of the railroad embankment where the steam shovel was working, and about 15 days before the accident the construction company requested the power company by phone message to come down from Beckley and move the wires, as they were in the way. Defendant claims that the request was to move the guy wire only. The next day the power company took down the steel pole, and the guy wire (which had been damaged by the construction), and moved the location of the pole about 6 feet farther from the construction and set up a cedar pole 40 feet in length with 5 feet in the ground and on the rock shale of the river bed, and placed the high-tension wires on a crossbeam about 8 inches from the top, thus raising the wires to approximately 34 feet above the ground. There is some conflict as to the height of the wires. Plaintiff's witnesses estimate the height at from 20 to 25 feet, while the power company, by actual measurement, showed the height to be 34 feet. Plaintiff's testimony is that the fill being constructed was 3 feet high, and it is quite apparent that at best the wires were approximately 32 feet above that fill. Estimates must give way to actual measurement, and it may be taken as a proven fact that the wires were at least 32 feet above the ground. The regulation of the state road commission (which was building the road by contract with the construction Company) requires such wires to be 22 feet above the highway. The foreman of the road construction gave no suggestions as to the location of the new pole or height of the wires and made no complaint then or afterwards about either. Fifteen days later, the accident occurred as above detailed.
The declaration charges defendant with the duty of maintaining its high-tension wires so that they would not come in contact with the boom or any one thereon in the discharge of his duties; that it was defendant's duty to inform plaintiff that the wires were heavily charged with electricity; and that it was defendant's duty to keep the wires at that place properly insulated--all of which duties defendant did not discharge, which nonperformance of duties owing to plaintiff caused his injuries.
Plaintiff was over twenty-one years old, and had been at work on the steam shovel for about six weeks, and prior to that time had worked in a steel mill in Ohio for eighteen months, and prior to that time he had worked on a farm.
Plaintiff does not testify about the wires except to say they were there, and when he climbed the boom and threw the cable from the sheave wheel he came in contact with them or one of them and was burned. He does not say that he knew they were electric wires or did not know. The foreman of the road construction said he (the foreman) did not know they were high-tension wires. He knew they were electric wires, for he called the electric power company to move them.
The errors assigned are to the giving and refusing instructions, and the refusal to set aside the verdict as contrary to the law and evidence. The power company asserts that it was guilty of no negligence in the construction and maintenance of its lines at the place where plaintiff was injured; that no duty was incumbent upon it to insulate its wires at that point; and that plaintiff's own negligence bars him from recovery.
Plaintiff says: (1) That defendant was required to use such care and prudence as would prevent injury to him because he had a right to be on the end of the boom in the prosecution of his work; that it was defendant's duty to insulate the wires while the road construction was in progress that because its lines...
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Boyce v. Monongahela Power Co.
...violated the NESC; (3) relying upon Maggard v. Appalachian Electric Power Co., 111 W.Va. 470, 163 S.E. 27 (1932), because the facts of Maggard are "nearly identical" to the facts of this case, as stated by the circuit court; (4) finding that it was undisputed that Petitioner intentionally g......