Northern Indiana Public Service Co. v. Howard, 18819

• Decision Date: 22 January 1957
• Docket Number: No. 18819,18819
• Parties: NORTHERN INDIANA PUBLIC SERVICE COMPANY, Appellant, v. Grace HOWARD, as Administratrix of the Estate of Williard Howard, Appellee.
• Court: Indiana Appellate Court

Page 558

139 N.E.2d 558

127 Ind.App. 488

NORTHERN INDIANA PUBLIC SERVICE COMPANY, Appellant, v. Grace HOWARD, as Administratrix of the Estate of Williard

Howard, Appellee.

No. 18819.

Appellate Court of Indiana, In Banc.

Jan. 22, 1957.

Rehearing Denied March 6, 1957.

Transfer Denied June 19, 1957.

Kizer & Neu, Plymouth, for appellant.

Paul E. Reed, Orville W. Nichols, Jr., Knox, for appellee.

KELLEY, Presiding Judge.

This is an action brought by appellee against appellant to recover damages for the wrongful death of her decedent allegedly caused by appellant's negligence in maintaining live high voltage electric wires not fully and completely insulated and in not designating by color or other designation, instantly apparent, the cross-arms or supports bearing said wires, as a result of which negligence appellee's decedent, her husband, without knowledge of the dangerous and deadly electrical voltage of said wires, was killed when a metal antenna he was then erecting came in contact with said wires.

Appellant's demurrer to the complaint was overruled. The cause was submitted to a jury which returned a verdict for appellee against appellant upon which the court entered judgment. Appellant's motion for a new trial was overruled.

The errors assigned are (1) the overruling of appellant's demurrer to appellee's amended complaint; (2) the overruling of appellant's motion for a new trial. The motion for new trial was upon the grounds that the verdict was not sustained by sufficient evidence and was contrary to law, error in overruling appellant's motion for directed verdict at conclusion of appellee's evidence, error in giving the court's preliminary instructions 2 and 3, error in giving appellee's instructions 1 and 4, and error in refusing to give appellant's tendered instructions 1, 2, and 16. The charged error of giving appellee's instruction 4 and the refusal to give appellant's tendered instruction 16 are not discussed by appellant and are considered waived.

Appellant's main contention is that, under the facts of the case, the provisions of Sec. 20-304, Burns' 1950 Replacement, are not applicable and, therefore, the court committed reversible error in instructing the jury that if it found that the appellant failed to 'obey' the provisions of the statute, it was guilty of negligence. Appellee admitted in argument that if we concluded that the statute was not applicable, a reversal should follow.

The referred to statute, in material and pertinent substance, reads as follows:

'It is hereby made the duty of all owners, contractors, subcontractors, corporations, agents or persons whatsoever engaged * * * in the transmission, generation or use of any electricity or other power * * * to see and to require * * * that in the transmission and use of electricity of a dangerous voltage, full and complete insulation shall be provided at all points where the public or any employees of the owner, contractor or subcontractor transmitting or using said electricity are liable to come into contact with the wire or wires, * * * and the arms or supports bearing live wires are especially designated and distinguished by a color or other designation which is instantly apparent, * * *.'

The evidence is without serious dispute and in material substance tends to establish the following facts: Lot 14 in the village of Hamlet, Indiana, is owned by that village and across said lot, extending in an easterly and westerly direction, the appellant for many years has maintained electrical wires strung from a pole on the westerly part of said Lot 14 to a pole on west curb of Starke Street, a north and south public highway, which forms the east end of the lot; the top strand of wires are three in number and carried an electrical voltage of 12,500; said top strand of wires were some 26 feet 6 inches above the ground and were not insulated with any kind of insulating material. Some ten feet below the top strand of wires was another three line strand of wires which carried a voltage of 220. The voltage of the lower strand of wires was insufficient, under ordinary circumstances, to cause death upon contact. The cross arms bearing said energized high voltage wires bore no distinguishing mark or color.

Lot 13 in said Town is privately owned and is contiguous to and north of said Lot 14. On said Lot 13 stands a one-story residence, the southwest corner of which is approximately 4 feet 6 inches from the common boundary line between said Lots 13 and 14, with a roof over-hanging approximately ten inches at a height of about 11 feet off the ground. The house had been situated on said Lot 13 for many years and long prior to the stringing by appellant of said electrical wires across said Lot 14. The house, at the time of the accident, was occupied by Ruth Bailey, daughter of the decedent, and her husband, Dennis Bailey.

None of appellant's wires passed over any part of said house or over said Lot 13. If the overhanging eave of the house were projected up to an even height with the high voltage wires, the eave at the southwest corner of the house would be, by horizontal measurement, approximately four feet north of the northernmost high voltage wire. As said wires are about 16 or 17 feet higher than the referred to overhanging eave, which is the nearest point of the house to the nearest wire, 'the distance from the wire to the overhang itself would be 17 1/2 feet.'

The proper reception in Hamlet of television broadcasts necessitates antennas extending upward, variously from 30 to 50 feet. Within the four years prior to April 2, 1953, there had been erected in Hamlet 'quite a number of television antennas with the normal antenna being between thirty and fifty feet'. Of this fact appellant had knowledge.

On April 2, 1953, appellee's decedent and three assistants were engaged in the attempted erection of a television antenna at the west side of said house. The...