McKee v. Pacific Power & Light Co.

• Decision Date: 29 August 1966
• Docket Number: No. 3490,3490
• Citation: 417 P.2d 426
• Parties: James F. McKEE, Appellant (Plaintiff below), v. PACIFIC POWER AND LIGHT COMPANY, a Maine Corporation, Appellee (Defendantbelow).
• Court: Wyoming Supreme Court

Page 426

417 P.2d 426

James F. McKEE, Appellant (Plaintiff below), v. PACIFIC POWER AND LIGHT COMPANY, a Maine Corporation, Appellee (Defendantbelow).

No. 3490.

Supreme Court of Wyoming.

Aug. 29, 1966.

Robert R. Rose, Jr., and Philip F. O'Neill, Casper, for appellant.

Houston G. Williams, of Wehrli & Williams, Casper, for appellee.

Before HARNSBERGER, GRAY, and McINTYRE, JJ.

Mr. Justice McINTYRE delivered the opinion of the court.

The plaintiff, James F. McKee, an electrician, was doing work on cable belonging to a television company and which was attached to poles of the defendant, Pacific Power and Light Company. The work involved disconnecting and unwinding tie wires which supported the cable. A tie wire broke and came in contact with high-voltage power lines of defendant causing electric shock and injury to plaintiff.

In a suit for damages, based on negligence of the power company, the trial court, at the close of all of the evidence, directed the jury to return a verdict for defendant. The plaintiff has appealed from the judgment entered on such directed verdict. The sole issue presented to us is whether a prima facie case of negligence against the power company was proved, and if so whether plaintiff was guilty of contributory negligence as a matter of law.

The pole on which McKee was working had two crossarms supporting a primary circuit on top and a secondary circuit 5.1 feet below the primary circuit. At a point 4.5 feet below the crossarm for the secondary circuit a TV messenger cable was attached. One foot below the TV cable was a telephone cable, and this cable was 21.7 feet above the ground. There were, then, three separately owned facilities located on the pole in question.

As we understand the contentions of appellant, it is suggested the defendant-power company was negligent: (1) because it did not insulate its high-voltage power lines; (2) because it did not inspect the TV installations of the television company and discover whatever kink or splice caused the tie wire which plaintiff was unwinding to break; or (3) because it did not cut off the power in its power lines while workmen were working on the cable of the television company.

It is undisputed that all of the facilities described above, including those of defendant-power company, were installed in compliance with the National Electric Safety Code. Also, counsel on both sides seem to agree the test to be applied in determining whether the negligence of an electric power company can be regarded as the proximate cause of an injury is whether, under all the circumstances, the injury might have been reasonably foreseen by a person of ordinary intelligence and prudence. See Annotation 69 A.L.R.2d 9, 19, § 4.

Therefore, our question first of all is whether the probability of injury to someone who had a right to be in the vicinity of defendant's high-voltage power lines might have been reasonably anticipated by the power company. See 26 Am.Jur.2d, Electricity, Gas and Steam, § 43, p. 252. We use the term 'first of all' in connection with this question because in this instance appellee claims, even if there was substantial evidence of a negligent omission on the part of defendant, plaintiff had assumed the risk or was guilty of contributory negligence as a matter of law.

There is absent from the record any evidence to show the insulation of defendant's high-voltage wires would have been practical and feasible, or that ordinary care would require it. We are shown no reason for believing the power company had a duty to inspect the facilities of the television company for kinks or splices in its tie wires, and the evidence does not show the breaking of the tie wire was caused by a kink or splice. Also, with respect to cutting off the power in defendant's lines while workmen worked on the television cable, it does not appear from the evidence that plaintiff or his employer or any of his fellow workmen requested or expected this to be done.

Although it is difficult for us to understand why plaintiff thinks a duty was owed to him and breached by the power company, it becomes unimportant under the circumstances admitted in this case. It seems to be well settled that there is no liability for injuries from dangers that are obvious, reasonably apparent, or as wellknown to the person injured as they are to the owner of the facilities in question. Watts v. Holmes, Wyo., 386 P.2d 718, 719; Moore v. Southwestern Sash & Door Co., 71 Ariz. 418, 228 P.2d 993, 995.

McKee's own testimony in this case eatablishes clearly that all of the dangers of defendant's power lines were obvious and apparent to him and as well-known to him as they were to the power company itself. We find nothing in the evidence from which it could be inferred otherwise, and no evidence tending to show...