Musser v. Norfolk

• Decision Date: 04 June 1940
• Docket Number: No. 9062,9062
• Citation: 122 W.Va. 365
• Court: West Virginia Supreme Court
• Parties: Howard Musser, Administrator, v. Norfolk and Western Railway Company

122 W.Va. 365

Howard Musser, Administrator,

v.Norfolk and Western Railway Company

No. 9062

Supreme Court of Appeals of West Virginia.

Submitted April 16, 1940.

Decided June 4, 1940.

1. Trial

"If, in the trial of a law action, the controlling facts which appear from the evidence are so conclusive that the court would be impelled to set aside a verdict adverse to such facts, the court should direct a verdict in conformity therewith." Syl. 4, Wood, Exec, v., Shrewsbury, 117 W. Va. 569, 186 S. E. 294.

2. Electricity

Where the catenary wire system of an electrified railway running under a highway bridge was so placed that a person standing on the bridge and reaching over the parapet could not touch the high voltage wires by at least nine feet, except by artificial means, held, that the railway company was not liable for injury to a boy of thirteen years, who, while crossing the bridge, had swung a chain over the side of the parapet, bringing it in. contact with the high voltage wires.

3. Dangerous Instrumentalities

A person in charge of or maintaining an instrumentality inherently dangerous is not liable to one who is injured thereby in a manner which could not be reasonably anticipated.

Error to Circuit Court, McDowell County.

Action by Howard Musser, administrator of the estate of William Monroe Musser, deceased, against Norfolk & Western Railway Company, for the allegedly wrongful death of William Monroe, deceased. To review an adverse judgment, the defendant brings error.

Judgment reversed; verdict reinstated; judgment here.

Maxwell and Hatcher, Judges, dissenting.

Crockett & Tutwiler, for plaintiff in error.

Ashworth & Sanders and Lilly & Lilly, for defendant in error.

Riley, President:

Howard Musser, administrator of the estate of William Monroe Musser, deceased, brought this action of trespass on the case in the Circuit Court of McDowell County against the Norfolk and Western Railway Company for the alleged wrongful death of plaintiff's decedent. This writ of error is prosecuted to the action of the trial court in setting aside a directed verdict in defendant's favor.

Defendant operates an electrified railroad, served by an overhead catenary wire system, consisting of messenger, auxiliary and trolley wires, the first being topmost, and all three uninsulated and carrying eleven thousand volts. Decedent, a boy of thirteen years, received injuries on September 17, 1938, from which he died on October 8, 1938. The accident occurred at the point where defendant's railroad is crossed by a public bridge a part of the highway connecting Welch and the Town of Hemphill.

In view of the fact that the injuries were the result of contact made with the messenger wire, by means of a chain and wire, which decedent dangled from the bridge above, a few of the physical features need be recited.

The bridge, which is in sight of and about one thousand feet from decedent's home, is supported by horizontal steel girders fifty-five and one-half inches in height, twenty-seven inches of which rise above the floor, thus forming a barrier along each side of the roadway, and on top of each of these girders is a board fence thirty-nine and one-half inches in height, making the top of the latter sixty-six and one-half inches above the floor of the bridge. On the left side of the roadway, going from Welch to Hemphill, and for the full length of the bridge, was a "water box", placed there to protect a water main. The top of this box was reached by a step of one foot, two inches, and a second step of ten inches. Pedestrians used this water box when vehicles passed on the bridge. The height of the trolley wire above the rails is nineteen feet, four inches; the distance from the trolley wire to the top of the messenger wire, fifteen inches; and the distance from the messenger wire to the bottom of the steel girders (bridge) eighteen and one-half inches. Thus by simple addition, it appears that the distance from the messenger wire to the top of the wooden fence is one hundred thirteen and one-half inches, or nine feet, five and one-half inches (eighteen and one-half inches plus fifty-five and one-half inches plus thirty-nine and one-half inches).

On the occasion of the injury, decedent, together with two boy companions, aged respectively ten and eleven years, was crossing the bridge. Decedent, who had with him a chain with a short wire at the end thereof, was seen by his companions and other witnesses, to stand on the water box, lean over the wooden fence and swing the chain in an effort to bring it in contact with one of the wires. As he did so, the chain touch the messenger wire. Immediately a loud noise followed, so loud indeed that decedent's father heard it at his home and thought it was a blow-out.

There is evidence to the effect that children were seen frequently to play on the water box; that it was necessary for pedestrians to step on the box whenever two cars undertook to pass on the bridge; that decedent was warned by his companions not to swing the chain against the wires; and that decedent was accustomed to use the bridge on his way to and from school.

The exact length of the chain and wire is not ascertained from the evidence. However, the fact that the messenger wire was nine feet, five and one-half inches from the top of the wooden fence, and that decedent was a boy of thirteen and small for his years, would clearly indicate that the chain and wire were not much less than the distance between the fence top and the messenger wire. In fact, one of defendant's witnesses testified without contradiction that after the injuries he found a burnt place on the messenger wire which was five feet, eleven inches from the girder and eleven feet, four inches from the top of the fence. This witness testified that if decedent's arm had been a foot, eight inches long, a fact which was ascertained by comparison with the arm of one of his boy com- panions, the chain and wire were at least nine feet, ten inches.

The record discloses several important facts which bear directly upon the question of whether defendant was guilty of primary negligence: (1) the eleven thousand voltage was standard for the kind of transportation in which defendant was engaged; (2) it is not practical to insulate extremely high voltage wires, especially those subject to outside conditions; (3) defendant's wires at the place where they ran under the bridge were substantially lower than at other parts of defendant's railway system; and (4) defendant's railroad system at the place in question had been electrified since 1923, and the water box had been so located for a number of years without injury to anyone.

In appraising the trial court's action, we are governed by the rule that a court should direct a verdict in a party's favor, if the evidence is such that if the jury had brought in a verdict in the other party's favor it would not be allowed to stand. Wood, Exec. v. Shrewsbury, 117 W. Va. 569, 186 S. E. 294; Linville v. Chesapeake & Ohio Ry. Co., 115 W. Va. 610, 177 S. E. 538; Martin v. Appalachian Electric Power Co., 109 W. Va. 129, 153 S. E. 245; Barr v. Knotts, 101 W. Va. 440, 133 S. E. 114; Bank of White Sulphur Springs v. Lynch, 93 W. Va. 382, 116 S. E. 685; Ketterman v. Dry Fork Railroad Co., 48 W. Va. 606, 37 S. E. 683.

The record has been studied for the purpose of determining whether or not it contains such a state of facts that a jury could find that the defendant was guilty of primary negligence. If not so guilty, that of itself disposes of all other questions in the case. We are well aware that electricity in high voltage is inherently dangerous to those coming in close contact with it, and where a person maintains wires and equipment containing high voltage in electricity there is a duty to use every reasonable effort to prevent injury. This rule, however, is circumscribed by another rule which we think applicable to this case. Even if the instrumentality is dangerous, care need be taken only in a degree which is commensurate with the circumstances and such duty to exercise such care does not require the operator of a dangerous instrumentality to foresee or anticipate extremely unusual happenings. Adams v. Bullock, 227 N. Y. 208, 125 N. E. 93.

We do not think the several West Virginia cases involving liability growing out of the use of electric wires are controlling here. Where electric wires are in easy reach without the aid of artificial means, the question of liability becomes at least a jury question. This Court so held in Love, Admr. v. Virginian Power Co., 86 W. Va. 393, 103 S. E. 352, a case in which a plaintiff was injured by a charged wire within four feet of the top of a slate pile; in Bice v. Wheeling Electrical Co., 62 W. Va. 685, 59 S. E. 626, where plaintiffs injuries were received from excessive voltage in a flexible wire cord in a blacksmith's shop; in Thomas v. Wheeling Electrical Co., 54 W. Va. 395, 46 S. E. 217, where plaintiff, working on a balcony of a theater building, contacted an...