Martin v. Appalachian Electric Power Co.
| Citation | 153 S.E. 245,109 W.Va. 129 |
| Decision Date | 06 May 1930 |
| Docket Number | 6638,6638-A. |
| Parties | MARTIN v. APPALACHIAN ELECTRIC POWER CO. et al. |
| Court | West Virginia Supreme Court |
Submitted April 29, 1930.
Rehearing Denied May 29, 1930.
Syllabus by the Court.
Appellate court, in reviewing on writ of error, directed verdict against two defendants in joint action for tort, may dismiss as to one for insufficiency of evidence.
Where in a joint action for tort against two parties defendant, the trial court has directed a verdict against both, this court may, on writ of error, dismiss as to one and enter nil capiat as to it, where the evidence is insufficient to establish guilt as to such party.
Where no evidence appreciably tending to overthrow prima facie case is adduced by adverse party, court should direct verdict, if requested.
When the evidence adduced by one of the parties to a civil action at law is sufficient to warrant a finding in his favor, and no evidence appreciably tending to overthrow the case so made has been adduced by the opposite party, it is the duty of the court to direct a verdict in favor of the former, if requested so to do.
Additional Syllabus by Editorial Staff.
Generating company held not liable for death resulting by coming in contact with distributing company's fallen wire.
The electric generating company, under contract with coal mining company, connected its transmission line with old system of lines belonging to coal company which had formerly manufactured its own electric current, and which old lines had been reconditioned for receipt of the new current of much higher voltage.
Proof of death by coming in contact with fallen electric wire raised prima facie presumption of distributor's negligence under res ipsa loquitur rule.
Plaintiff's evidence showed that fallen wire was old and corroded and had broken numerous times while being reconditioned for the higher voltage which it carried after being connected with electric company's transmission line. The sun was shining on day of accident, there had been no recent storms, and wire had been in place a short time before decedent came in contact with it.
Electric distributor held required to show condition of wire when it fell besides showing proper installation, to rebut prima facie showing of negligence.
Error to Circuit Court, Mingo County.
Action by Brice B. Martin, administrator of the personal estate of Rosa Martin, deceased, against the Appalachian Electric Power Company and the Borderland Coal Corporation. Judgment for plaintiff, and defendants bring error.
Reversed and dismissed as to defendant first named, and affirmed as to defendant last named.
Bailey & Shannon, of Pineville, and W. E. Whitt and W. Scott Whitt both of Williamson, for defendant in error.
This is an action in trespass on the case brought in the circuit court of Mingo county, by the administrator of the personal estate of Rosa Martin, deceased, against Appalachian Electric Power Company, a corporation, and Borderland Coal Corporation, a corporation, for the recovery of damages for the death of said Rosa Martin by electrocution in the coal camp of the coal company. The trial court instructed the jury to find for the plaintiff against both defendants, and the jury returned a verdict for $5,000. Both of the defendants prosecute error.
The Appalachian Electric Power Company is a public service utility engaged in the business of manufacturing and selling electric energy to purchasers and consumers. The Borderland Coal Corporation is a coal mining company with operations on Tug river at Borderland, in Mingo county, W. Va., and as a part of its operation owns the town site and houses where plaintiff's decedent lived and was killed.
Prior to June 1, 1928, the coal company manufactured its own electric current at its operations at Borderland, and transmitted the electric current so manufactured to and through its mines, buildings, and houses over a system of electric lines built, owned, and maintained by it. The wire on which Mrs. Martin was electrocuted was a part of this old installation. On or about April 26, 1928, the coal company entered into a written contract with the power company to furnish electric energy for its operation from the power company's main feeder lines; the power so contracted to be delivered and metered at the Hatfield substation. Later, and by a verbal arrangement, the power company, under the supervision of Morris, manager of the coal company, constructed a connecting transmission line from its Hatfield substation a distance of approximately two miles to the Borderland operation, and tapped onto its old system of lines which had been reconditioned for the receipt of the new current.
On the morning of December 3, 1928, the plaintiff's decedent, who was the wife of one of the employees of the coal company, and at the time of her death resided in one of said company's houses, while passing through the back yard of her son, Virgil Booton, came in contact with one of the electric wires which had broken and fallen, and was instantly killed. The evidence does not disclose what caused the wire to break and fall, but does fully show that it could not have been down more than thirty minutes before plaintiff's decedent came in contact with it.
The first question goes to the liability of the power company. The declaration charges that both the power company and the coal company were the owners and operators of the power line which caused the damage. As already stated the power company built the line from the substation at Hatfield to the substation near the tipple of the Coal Company, a distance of two miles. The lines of the coal company (which formerly had been installed to carry 110 volts) were reconditioned by the servants of the coal company to carry 2,300 volts before the power company was given direction to turn current into it. The power company measured and sold its current at the Hatfield substation. The line which the power company had constructed before beginning its service is not a part of the line which caused the damage sued for in this case. There is no contention that it was a joint owner of the lines leading out from the coal company's substation to its tenement houses and mines. The following provision in the contract of April 26, 1928, is cited for the purpose of fixing liability "The (power) company shall be the sole judge as to the suitability of apparatuses to be connected to...
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