Moyers v. Ogle
| Decision Date | 26 October 1940 |
| Docket Number | No. 1.,1. |
| Citation | 148 S.W.2d 637 |
| Parties | MOYERS et al. v. OGLE. |
| Court | Tennessee Supreme Court |
William C. Fitts, Jr., Chas. J. McCarthy, and Robert H. Marquis, all of Knoxville, for plaintiff in error Tennessee Valley Authority.
R. L. Ogle, of Sevierville, for defendant in error.
Estel Ogle instituted this suit before a justice of the peace to recover the value of a horse killed by coming in contact with one of the wires of a transmission line owned by the Tennessee Valley Authority. J. J. Moyers was also made a defendant, and judgment went against him and the Tennessee Valley Authority in the Circuit Court for the value of the horse which was fixed at $250. Moyers has not appealed. The Tennessee Valley Authority filed a motion for a new trial which was overruled, and it has appealed in error to this court.
The circuit judge, trying the case without a jury, found that the line was negligently maintained, in that uninsulated wires were allowed to extend through or near the branches of trees at a point where it crossed over a public road or highway and, as we understand the court's finding, that the proximate cause of the injury to plaintiff's horse was the line coming into contact with the top of a spruce tree creating a short circuit and causing the line to burn in two and fall over the highway. The court specifically found, however, that the failure of defendant, Tennessee Valley Authority, to cut off the current when notified that the wire was down did not constitute the proximate cause of the injury, since the horse was killed only a few minutes after notice was received.
On October 9, 1939, plaintiff was engaged in the business of furnishing saddle horses for hire near Gatlinburg, Tennessee. On the date mentioned he hired three horses to three young ladies. When the riding party reached a point on the highway in front of the defendant Moyers' property, they were notified that the wire was down and extending across the highway. Moyers undertook to assist one of the riders across the point of danger by leading her horse, still mounted, under the wire, which was hanging some few feet above the roadbed. Moyers testified that while being led under the wire the horse threw his head to one side and one ear came in contact with the wire, killing him instantly. Liability against Moyers is based upon a charge that he was guilty of negligence in attempting to lead the horse under the wire with full knowledge that it was charged with electricity.
Some months prior to the date in question, the Tennessee Valley Authority acquired the transmission line from a private operator, and, it appears, made regular inspections thereafter for the purpose of determining the need for trimming trees along and near the line. It does not appear definitely when the spruce tree in question was trimmed but it does appear from the proof without question that it had been trimmed at some time in the past. The evidence in behalf of plaintiff shows that limbs had grown up since it was trimmed and extended between and around the two wires. The witness Brown testified that he had seen branches of the spruce tree come in contact with the wire and had seen the branches "blaze" when the wind would blow them against the wires. There is some evidence introduced in behalf of the Tennessee Valley Authority that the wires were some three or four feet above the top of the spruce tree but none of these witnesses appear to have been familiar with conditions at this exact location at the time in question. We find no sufficient reason for rejecting the testimony of Brown upon this issue though we think it is clear from all the proof that the wires prior to the time in question came in contact only with small branches of the spruce tree and did not come in contact with the trunk or rigid portions of the tree and its branches.
At the point in question the transmission line was supported by two poles three hundred and twenty feet apart. A diagram of the situation shows that the spruce tree was one hundred and ten feet away from the nearest pole. Between the nearest pole and the spruce tree was a sycamore tree the branches of which extended above the transmission line shown to have been approximately twenty-five feet above ground. Shortly before plaintiff's horse was killed, Moyers directed Brown to cut a limb from the sycamore tree. The uncontradicted proof shows that this limb was ten or fifteen feet above the nearest wire but when it fell it lodged upon the wires. Brown thereupon struck at the limb in an attempt to dislodge it. Brown says the limb was on the wire for a minute or so before it fell. There can be no question from the proof that the weight of the limb pulled one of the wires down upon the top of the spruce tree thus creating a short circuit and causing the wire to burn in two at that point.
Brown went to the home of a neighbor some one hundred yards or more away and telephoned the Sevierville office of the Tennessee Valley Authority. When he returned a few minutes later the horse had already been killed indicating, as defendant insists, that there was not sufficient time to have cut off the current at the power station two miles out of Sevierville before the horse was killed.
Assuming, under the facts stated, that T. V. A. was guilty of some negligence in allowing tree branches to grow up around an uninsulated transmission line, we have been forced to conclude that two other efficient intervening causes proximately resulted in the death of plaintiff's horse. At most, defendant's...
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