Nelson v. Iowa-Illinois Gas & Elec. Co.

• Decision Date: 18 July 1968
• Docket Number: No. 52993,IOWA-ILLINOIS,52993
• Citation: 160 N.W.2d 448
• Parties: Mary Jane NELSON, Administratrix of the Estate of Raymond Nelson, Deceased, Appellant, v.GAS AND ELECTRIC COMPANY, Appellee.
• Court: Iowa Supreme Court

Page 448

160 N.W.2d 448

Mary Jane NELSON, Administratrix of the Estate of Raymond Nelson, Deceased, Appellant, v. IOWA-ILLINOIS GAS AND ELECTRIC COMPANY, Appellee.

No. 52993.

Supreme Court of Iowa.

July 18, 1968.

Ulstad & Guinan, Fort Dodge, for appellant.

Johnson, Burnquist, McCormick & Erb, Fort Dodge, for appellee.

MOORE, Justice.

This is a negligence action by administratrix of the estate of deceased spouse for death by electrocution on December 1, 1961. Different facets of the same factual circumstances have twice been before this court. See Nelson v. Iowa-Illinois Gas & Elec. Co., 259 Iowa 101, 143 N.W.2d 289, which involved plaintiff's claim for damages against Cities Service Oil Co. and Nelson v. Cities Service Oil Co., 259 Iowa 1209, 146 N.W.2d 261, which involved a claim for workmen's compensation. In each, plaintiff was unsuccessful. Here we are concerned with her action against Iowa-Illinois Gas and Electric Company for alleged negligent maintenance of its electric transmission line. At the close of all evidence the trial court directed a verdict for defendant. Plaintiff has appealed from judgment thereon. We affirm.

Plaintiff asserts the trial court erred in holding the evidence insufficient for submission of pleaded specifications of negligence and refusing to submit the case under the rebuttable presumption provided by what is now section 489.16, Code, 1966.

I. In considering the propriety of a motion for directed verdict we view the evidence in the light most favorable to the party against whom the motion is made. Rule 344(f)2, Rules of Civil Procedure.

Plaintiff's decedent, Raymond Nelson, was hired by Cities Service Oil Company to remove three underground gasoline storage tanks at the site of an abandoned service station about six miles north of Fort Dodge. The station had ceased business operations approximately six months prior to December 1, 1961 the date on which decedent, accompanied by Harvey Finney, a crane operator, went to the site to remove the tanks. The crane mounted on a large truck had been taken to the station site the night before.

The station was on the east side of highway 413, which there runs in a northsouth direction. Parallel to 413 and along the east edge thereof, defendant maintained a 13,800 volt power line consisting of three wires. The poles and line had originally been installed in 1929 with permission of the county engineer who apparently had authority to direct location of the poles. Between 1929 and 1952 the line was single phase carrying 7200 volts.

In 1952 the line was reconstructed, pursuant to approval secured from the Iowa Commerce Commission, to accommodate 13,800 volts. The original poles, located about one foot west of the boundary between the highway and service station property, were left in position but new wires and ten foot crossarms were installed. Two of the three wires were attached to the west half of the crossarms. The third was attached to the outer edge of the east half. The uninsulated wires were more than thirty six inches apart. The east wire extended approximately five feet beyond the right-of-way and over the service station property.

On December 1 decedent and Finney went to the site and began preparations to remove the tanks. They had worked together previously on other jobs. Both men were aware of the wires and discussed the importance of using care in the vicinity thereof. Defendant had no notice or knowledge of the tank removal project. Finney placed the cab of the crane directly under the wires with the boom hung over the area where the tanks lay. He operated the crane while decedent worked on the ground attaching a chain to the tanks for lifting them and removing the chain after each tank was taken out. They were placed on the ground to the southwest of the holes from which they were removed. In order to place them in that position the crane swung toward the wires.

As decedent was removing the chain from the third and last tank which had just been lifted out of its hole, a lethal current of electricity passed through his body resulting in his death.

Finney testified: 'I had taken last tank out and I kept tanks in a straight line parallel with building so as to stay away from wires, and I left crane boom in same position it was when I dropped the tank and left a little slack. I set the house lock brake so boom would not move. Raymond removed chain from tank and he was trying to remove chain from bucket when electricity hit. When house was locked a man could only move boom's upper end at most six inches, if that. I was sitting in my seat in cab when I saw Raymond stiffen and I looked up and saw end of boom was three or four feet away from all wires. I saw no arcing or electrical jumping from wires when I looked up, but I saw smoke around the bucket and Raymond had been killed instantly.

'At the time Raymond Nelson was removing the chain from the bucket and at the time the crane made contact with the electricity I was looking at him. I saw him stiffen, but didn't hear or see any arcing between the wires and boom. His hands were working on the chain.'

Immediately after the accident defendant company was notified and its employees investigated the facts. Plaintiff called as one of her witnesses, Mr. Warren Ewen, defendant's electrical distribution superintendent, who had inspected the line and boom on the day of the accident. He testified damage to the line was negligible but a bright copper spot was visible on the surface of the east wire and a corresponding spot was found on a stay cable on the boom approximately two feet from the top. These spots mark the point of contact between the electric current and the boom. Whether the boom touched the wire or the electricity arced could not be determined. The point of contact on the transmission wire was above the gravel driveway into the service station.

Mr. Ewen, a graduate electrical engineer from the University of Iowa and an experienced designer of electrical transmission lines, testified in detail regarding the transmission line here involved, the requirements of the National Electrical Safety Code and proper designing of transmission lines. Plaintiff introduced in evidence a copy of the safety code which Ewen stated was prepared under the supervision of the Department of Commerce, 'in which qualified people try to determine some standards in which everyone can live with; standards of safety for the public; standards of safety for the customers; standards of safety for the workmen who have to work on the lines; also standards of safety for their continued operation for the good of the customers. All these things are involved. Several organizations have members on the committee that draws the standards and revises them periodically. As new materials and new methods are available, standards are upgraded and updated.' He further testified the Iowa Commerce Commission, to which defendant company is responsible, had adopted said safety code as the standards for proper electrical practice in Iowa.

Mr. Ewen related the many requirements of the safety code, including those where electrical lines are over or near private property, and stated the minimum requirement had not only been met but exceeded at the place of the accident. He outlined how the minimum height and clearance requirements were exceeded by several feet. Ewen stated having in mind the National Electrical Safety Code and the term 'good engineering practice' he found no defect or deficiency in the installation.

Plaintiff's witness, Glenn H. Miller, a civil engineer and former highway commission employee, identified a plat, exhibit 2, prepared by him showing the oil station site, the measurements and the location of various items. He expressed the opinion the location of the poles was improper because of the overhang of the east wire over private property. The record is entirely devoid of any proof of whether defendant company had obtained permission to so locate the wire or held an easement. He had no training or experience as an electrical engineer and had never studied the requirements of the National Electrical Safety Code.

Keith Peterson, the holder of a Bachelor's degree in engineering from the University of Iowa, was called as a witness by plaintiff. He had acted as a field engineer in New York and had designed a one volt transmission line for a community antenna system transmission line. He was unfamiliar with the provisions of the safety code although he had read some of its provisions a week before testifying. He attempted to construe some of its provisions regarding clearance requirements but on cross-examination stated he could have been mistaken. His testimony includes:

'Q. Are you aware that they (rules of the National Electrical Safety Code) have been adopted by the Iowa Commerce Commission as the standards to be followed as safety rules for the installation and maintenance of electrical supply and communication lines in the State of Iowa by Utilities? A. No.

'Q. You weren't aware of that? A. No, I wasn't aware of it.

'Q. Is it any longer your testimony that this book limits the distance between the western edge of that slab and that line to eight feet? A. I am not basing my opinion on that book.

'Q. Is it any longer your opinion that this book requires at least an eight foot clearance between a point under the line and the western...