Morton's Adm'R v. Ky.-Tenn. Light & Power Co.

• Decision Date: 05 March 1940
• Citation: 282 Ky. 174
• Parties: Morton's Adm'r v. Kentucky-Tennessee Light & Power Co.
• Court: United States State Supreme Court — District of Kentucky

282 Ky. 174

Morton's Adm'r v. Kentucky-Tennessee Light & Power Co.

Court of Appeals of Kentucky.

March 5, 1940.

1. Electricity. — In action for death of state highway commission's employee who was electrocuted when steel rod, which it was found necessary to remove in process of painting and repairing bridge, came in contact with electric wire which at point of accident was 11 feet from bridge, and which was maintained on power company's right of way almost parallel with bridge, the employee, an intelligent man, was chargeable with knowledge that the wire was dangerous where fellow workmen testified to their knowledge of the dangerous nature of the line.

2. Electricity. — In action for death of state highway commission's employee who was electrocuted when steel rod, which it was found necessary to remove in process of painting and repairing bridge, came in contact with electric wire which at point of accident was 11 feet from bridge, and which was maintained on power company's right of way almost parallel with bridge, evidence that at one end of bridge the line was only 6 feet from bridge truss and that foreman, in view of accident, considered situation to be dangerous and had taken his men off the bridge, was incompetent.

3. Evidence. — In action for death of state highway commission's employee who was electrocuted when steel rod, which it was found necessary to remove in process of painting and repairing bridge, came in contact with electric wire which at point of accident was 11 feet from bridge, and which was maintained on power company's right of way almost parallel with bridge, testimony of a highway engineer that power line could have been constructed further from bridge without additional expense or burden was incompetent.

4. Evidence. — The opinion of experts regarding ultimate fact of whether an open visible situation is dangerous is not competent, since admission of such opinions would be to allow the witness to take the place of the jury.

5. Trial. — It is the province of jury to reach and declare the final ultimate facts.

6. Evidence. — Generally, a witness cannot be allowed to express an opinion upon exact question or matter directly in issue which the jury are required to decide.

7. Evidence. — Expert testimony is not permitted to invade the field of common knowledge.

8. Evidence. — An opinion regarding due care or its absence is not a proper subject of expert testimony.

9. Evidence. — In action for death of state highway commission's employee who was electrocuted when steel rod, which it was found necessary to remove in process of painting and repairing bridge, came in contact with electric wire which at point of accident was 11 feet from bridge, and which was maintained on power company's right of way almost parallel with bridge, testimony of witnesses who qualified as having expert knowledge of the fundamentals of electricity that in their opinion, based on hypothetical questions, the line was an unsafe distance from bridge and, from the standpoint of workmen on bridge, power company had not used the highest degree of care in erecting and maintaining the line at that location, was incompetent.

10. Electricity. — In constructing and maintaining an electric line, all reasonable precautions are to be adopted and observed for the protection of every person at every place that one has a right to go or to be, and such degree of precaution is of the highest because in dealing with so deadly an instrumentality the highest degree of caution is but "ordinary care commensurate with the danger."

11. Negligence. — A defendant generally is not liable where no injurious consequences could reasonably have been perceived as a result of the act complained of.

12. Negligence. — The fact that a particular act which resulted in injury could not have been foreseen or the particular form of injury could not have been anticipated does not excuse negligence.

13. Negligence. — Where no danger exists in a condition which merely made it possible for an injury to happen through some independent, unrelated, and efficient cause, the condition cannot be held to be the proximate cause.

14. Electricity. — Even with the high degree of care imposed on distributors of electricity, they are not required to guard against that which a reasonably prudent person under the circumstances would not anticipate as likely to happen, and they are not required to insulate wires at points where no one could reasonably be expected to come in contact with them.

15. Electricity. — Where state highway commission's employee, engaged in painting and repairing bridge, was electrocuted when rod which it was found necessary to remove came in contact with electric wire which it was impossible to insulate because it carried 11,000 volts and which, at point of accident, was 11 feet from bridge on power company's right of way almost parallel

with bridge, power company was not liable, and court properly directed verdict for power company, since the location of the line was not dangerous and the act of the employee was not one that could have been reasonably anticipated.

Appeal from Warren Circuit Court.

Charles R. Bell and Forrest P. Bell for appellant.

Laurence B. Finn for appellee.

Before Porter Sims, Judge.

OPINION OF THE COURT BY STANLEY, COMMISSIONER.

Affirming.

This is a suit for damages for the death of Douglas R. Morton. The appeal is from a judgment for the defendant on a directed verdict.

The decedent was an employee of the State Highway Commission, engaged in painting and repairing a bridge across Rolling Fork of Salt River, between Nelson and Larue Counties, when he was killed on May 8, 1936. The bridge is 150 feet long, with a steel superstructure. The defendant maintains on its own right of way, almost parallel with the bridge, an electric line of three wires, carrying 11,000 volts. The elevation of the wires is about the same as the top of the bridge superstructure, and at the point of the accident is 11 feet distant. Morton was on a chord or top girder of the bridge truss on the side nearest the electric line. It had been found necessary to remove a lateral steel rod 27 feet long extending diagonally across to the other chord which, with another rod, formed a brace in the shape of an "X" connecting the two trusses. The rod had been loosened and Morton was pulling it across with the end protruding far over the side of the bridge in order that it could be passed beneath the intersecting rod and be lowered to the floor. In extending it back the rod came in contact with the electric wire and Morton was electrocuted.

The plaintiff alleged negligence in erecting and maintaining a high tension wire too close to the bridge and without any protection or warning of its dangerous character. The line was constructed long after the bridge and ten or twelve years before the accident. The deceased had been at work on the highway and bridge for two or three weeks and his fellow workmen testify to their knowledge of the dangerous nature of the line. The deceased, an intelligent man, is chargeable with the same knowledge. The trial court excluded evidence that at one end the line was only six feet from the bridge truss and confined the testimony to its proximity within the radius or reach of the rod being removed. As stated, it was eleven feet measuring at a right angle, but it was thirteen feet to the point where the rod touched the wire as it was being moved back at an angle. The court also excluded evidence of the foreman under whom the deceased was working that in view of the accident he considered the situation to be dangerous and had taken his men off the bridge; also testimony of a highway engineer that the line could have been constructed farther from the bridge without additional expense or burden. The court...