Mississippi Power & Light Co. v. Shepard

• Decision Date: 24 September 1973
• Docket Number: No. 46986,46986
• Citation: 285 So.2d 725,82 A.L.R.3d 86
• Parties: MISSISSIPPI POWER & LIGHT COMPANY v. Melissa Kaye SHEPARD.
• Court: Mississippi Supreme Court

Page 725

285 So.2d 725

82 A.L.R.3d 86

MISSISSIPPI POWER & LIGHT COMPANY v. Melissa Kaye SHEPARD.

No. 46986.

Supreme Court of Mississippi.

Sept. 24, 1973.

Rehearing Denied Dec. 10, 1973.

Wise, Carter, Child, Steen & Caraway, Green, Chency, Jones & Hughes, Jackson, Campbell, DeLong, Keady, Robertson & Hagwood, Greenville, for appellant.

Robertshaw, Merideth & Swank, J. Murray Akers, Greenville, for appellee.

RODGERS, Presiding Justice.

This appeal arises out of a wrongful death action brought in the Circuit Court of Washington County, Mississippi. The appellee-Melissa Kaye Shepard, a minor-filed suit through her grandmother and next friend, Mrs. George Atkins, against Mississippi Power & Light Company, in an effort to recover damages resulting from the electrocution of appellee's father, Billy Joe Shepard. After a lengthy trial, the jury returned a verdict in favor of appellee.

On the night of November 13, 1969, Billy Joe Shepard, along with his wife Linda Faye, and his brother, Tommy, endeavored to erect a television antenna at the home of Linda Faye Shepard's mother, Mrs. George Atkins, located at 104 West Goldstein Street in Hollandale, Mississippi. The antenna was fastened to a short metal tube approximately three feet long, connected to a metal telescoping mast. Billy Joe Shepard decided to stretch the antenna mast assembly out in the yard near the site of the proposed erection, with the idea of stepping the mast and antenna into a vertical position next to the west corner of the porch of the Atkins home. Once the thirty-two foot seven inch antenna-mast combination had been walked to an upright position by the two Shepard brothers, Linda Faye was called upon to hold the metal pole at its base while her husband and brother-in-law searched for a means of securing it. Suddenly, the mast began to fall, and Linda Faye cried out for help. The Shepard brothers rushed to her assistance in an effort to arrest the antenna's oblique gravitational descent toward the ground. Yet, just as the young men grabbed the metal pole, the antenna fastened thereto came in contact with appellant's transmission lines, and both brothers were electrocuted.

Billy Joe Shepard was a 27-year-old crew foreman engaged in the maintenance and repair of heavy earth moving equipment. At his death, Billy Joe Shepard was succeeded by his wife, a daughter nearly five years old, and an eight-week-old son. The appellee introduced testimony to show that immediately prior to his death, Billy Joe Shepard had a life expectancy of forty-three years.

Mrs. Atkins' house faced south on Goldstein and was set back from the street and the front lot line by a distance of about twelve feet, with the front porch extending about seven feet further towards the street. Defendant's power lines were originally erected in 1946 and have remained essentially unchanged since that time. The power lines consisted of three primary lines carrying an electromotive force of 13,800 volts, strung in a horizontal plane about 30 to 32 feet above the ground. Below the primary lines were a neutral line and two single-phase household current distribution lines. The secondary or household current wires exhibited a potential difference of about 120 volts to ground and approximately 240 volts between the two energized conductors. All of these wires, both primary and secondary, were uninsulated and otherwise unguarded except as to height above the ground.

The record indicates that prior to the erection of the telescoping mast and antenna on the evening of November 13, 1969, three different television antennas were employed by former residents of 104 West Goldstein street. These antennas were supported by two different structures-at one time a 45-foot crankup steel tower was used, and on another occasion a 34-foot seven-inch creosote utility pole was in use. Expert witnesses testified that any of these structures could have made contact with defendant's power lines had the structures broken at the base, and had they fallen directly towards the power lines.

Of the several alleged errors argued on appeal, the most important so far as this appeal is concerned, and the only that has given this Court considerable concern, is the one in which the appellant alleges that the trial court committed grave error in refusing defendant's motion and requested instruction for a directed verdict in favor of the Mississippi Power and Light Company.

The appellant argued in the trial court, and now argues here, that the plaintiff failed to prove by a preponderance of the testimony that the appellant committed any negligent act or omission which contributed to the injury and death of Billy Joe Shepard; that the negligent acts of Billy Joe Shepard were the sole proximate cause of the accident and his death. This argument is based upon the proposition that the Mississippi Power and Light Company (hereafter referred to as 'Power Company') owed no duty to the public and the deceased which it had not performed. We are, therefore, confronted with the question as to what duty the Power Company owed to the deceased and whether or not this duty had been performed.

It may be safely said as a general proposition that an electric company is under a duty to safeguard the public against injury arising from the use of its dangerous agency, whether the danger arises from its negligence, the negligence of others, or from causes over which it has no control, to the extent of exercising reasonable care to correct or remove the cause of danger if reasonably foreseeable and known to the Power Company. An electric company is not an insurer and is not liable for injuries unless it is guilty of some wrongful act or omission. However, a power company must anticipate and guard against events which may be reasonably expected to occur, and its failure to do so is negligence, even though the power company may not anticipate the identical injury that occurs. 29 C.J.S. Electricity § 38, at 1058-1059 (1965).

The degree of diligence which a distributor of electricity must observe in the distribution of the dangerous agency of electricity is a very high degree of care. When human life is at stake due care under the prevailing circumstances requires that everything that gives reasonable promise of preserving life must be done regardless of difficulty or expense. Moreover, the degree of care increases as the danger increases. 38 Am.Jur. Negligence § 31, at 677 (1941). Just as a railroad may move its trains at a fast rate of speed across meadows and rural farmland where few crossings exist, where people seldom cross the tracks, but is legally required to slow the trains' speed and to anticipate the presence of people, as its trains approach metropolitan areas where there are many street crossings and the population is dense-so, it is the duty of power companies, as their lines emerge from rural areas into a closely built-up habitation where human beings are actively engaged in moving about near and adjacent to the death-dealing power lines located in streets where the citizens have a right to be, to increase their care and vigilance to preserve life and prevent injury.

The degree of care imposed upon the distributors of electricity has been variously expressed as 'ordinary or reasonable care under the circumstances', high, very high, highest, very highest, great, very great, greatest, extraordinary, or utmost. For the most part, however, the foregoing statements reflect a mere difference in phraseology. A. Curtis, The Law of Electricity, § 404, at 593-594 (1915).

In a similar fashion, one text writer states:

's 42. Standard or degree of care required.

The degree of care required to be used in the production, distribution, and use of electricity is stated in various terms which, perhaps, convey merely one idea. To declare that the utmost care must be used to prevent injury sound different in statement than to say that ordinary care must be used in view of all the circumstances; but when analyzed, the meaning is not far different, for the ordinary care required under the circumstances is, in its practical application and in view of the highly dangerous character of electricity, a relatively high degree of care.

While the measure of duty resting upon electric or telephone companies and others transmitting or using electricity in order to exonerate them from liability for negligence is expressed by the courts in forms varying from reasonable or ordinary care and diligence to a close approximation to the view that they are insurers, or that they owe a high, or the highest or utmost, degree of care, yet the generally accepted rule in such cases, as in determining liability for negligent injuries generally, is that such companies or persons are bound to use reasonable care in the construction and maintenance of their lines and apparatus-that is, such care as a reasonable man would use under the circumstances-and will be responsible for any conduct falling short of this standard. The degree of care which will satisfy this requirement varies, of course, with the danger which will be incurred by negligence and must be commensurate with the danger involved.' 26 Am.Jur.2d Electricity, Gas and Steam § 42 at 248-249 (1966).

Since 1907, this Court has imposed 'the highest degree of care' on persons and corporations using electricity. Thus, in the landmark case of Temple v. McComb City Electric Light & Power Co., 89 Miss. 1, 42 So. 874 (1907), this Court observed:

'The corporations handling the dangerous agency of electricity are bound, and justly bound, to the very highest measure of skill and care in dealing with these deadly agencies.' 89 Miss. at 7, 42 So. at 874.

Following the rule set forth in Temple, supra, Presiding Justice Kyle in Triplett v. American Creosote Works, Incorporated, 251 Miss. 727, 171 So.2d 342 (1965), stated:

'The Power Association was required to exercise the highest degree of care in the construction and...