Olson v. Cass County Elec. Co-op., Inc., CO-OPERATIV

• Decision Date: 28 January 1959
• Docket Number: INC,CO-OPERATIV,No. 7770,7770
• Parties: Russell OLSON, Plaintiff and Respondent, v. CASS COUNTY ELECTRIC, Defendant and Appellant.
• Court: North Dakota Supreme Court

Page 506

94 N.W.2d 506

Russell OLSON, Plaintiff and Respondent, v. CASS COUNTY ELECTRIC CO-OPERATIVE, INC., Defendant and Appellant.

No. 7770.

Supreme Court of North Dakota.

Jan. 28, 1959.

Syllabus by the Court.

1. Negligence, whether contributory or primary, is a question of fact for the jury unless the evidence is such that reasonable minds can draw but one conclusion therefrom.

2. A motion for judgment notwithstanding the verdict should not be granted unless the moving party is entitled to judgment on the merits as a matter of law.

3. While a distributor of high voltage electricity is not an insurer it does have the duty in erecting and maintaining its transmission lines to exercise care commensurate with the dangers involved.

4. Care commensurate with the danger involved in the transmission and distribution of high voltage electricity includes reasonable inspection of transmission lines. The duty to inspect is not confined to areas of dense population but applies as well to transmission lines over agricultural land.

5. A proximate cause of an injury is a cause which as a natural and continuous sequence unbroken by any controlling intervening cause produces the injury and without which it would not have occurred.

6. Contributory negligence is an affirmative defense.

7. The standard to be used in determing whether or not a party has been guilty of contributory negligence such as will defeat his recovery is whether his actions were those of an ordinarily prudent person in the same circumstances and in the same position.

8. The burden of establishing a plaintiff's contributory negligence rests upon the defendant.

Johnson & Milloy, Wahpeton, for plaintiff and respondent.

Wattam, Vogel, Vogel, Bright & Peterson, Fargo, for defendant and appellant.

MORRIS, Judge.

The plaintiff brought this action to recover damages for personal injuries he received when the wires of an electric power line bearing 7,200 volts of electricity fell on a farm machine that he was operating under the power line on July 24, 1957. He alleges that this line, which was owned and operated by the defendant, was maintained in a negligent manner with the result that one of the poles broke causing live wires to fall and injure the plaintiff.

The defendant denies that it was negligent and alleges that plaintiff's own carelessness, negligence and want of ordinary care caused or contributed proximately to cause the plaintiff's injuries.

The case was tried before a judge and jury. After a motion by the defendant for a directed verdict had been denied a verdict was rendered for the plaintiff. The defendant made a motion for judgment notwithstanding the verdict which was also denied. The defendant appeals from the judgment and from the order denying its motion for judgment notwithstanding the verdict.

The defendant's transmission line ran along the east edge of a section line roadway right of way. The direction of both the road and the line was north and south. The land on which the accident occurred was owned by Thea Paulson who had given the defendant a right of way easement for the construction of its line. The line was built in 1940 and in 1955 was moved 12 feet to the east to permit a widening of the road along the Paulson farm. The road improvement did not extend farther north than the Paulson farm and the poles beyond it had not been moved with the result that the line no longer ran straight. A 12 foot offset was created which necessitated the installation of guy wires on some poles.

At the time of the accident the Paulson farm was being operated by Erwin Johnson. The plaintiff had farmed in the neighborhood since 1941 and for some time had followed the practice of exchanging farm work with Johnson. On the evening of July 24, 1957 between 6 and 7 o'clock the plaintiff was cutting a swath around a field of wheat with a 14 foot self-propelled swather. Grain had been planted around the guy wires and up to the poles. He had traversed the south side of the field from east to west and turned north on the west side of the field along which ran the defendant's transmission line. He came to a pole and guy wire. He drove his machine under the guy wire and continued on north. He came to a second pole and guy wire and attempted to again drive his machine between the pole and guy wire but found that the reel on his swather would not pass under the wire. He noticed that the wire was slack. It was anchored in the ground some 18 or 20 feet straight east of the pole.

The swather was mounted on three wheels. There were two larger wheels, one at each end. These wheels, powered by a 14 horsepower motor, were operated through separate clutches and could be separately rotated in either direction with the result that each end of the swather could be moved forward or backward. Thus the guidance and maneuverability of the swather depended entirely upon the two end wheels. The operator of the machine was seated at the extreme left end over the iron frame immediately back of the reel. When operating the machine the left wheel would be below his left hand. The frame of the swather extended in a scalene triangle to the rear of the operator and attached to the vertex of that extension some three or four feet to the right and some distance to the rear of the left front wheel was the third wheel. This wheel only gave weight bearing stability to the swather. It was free running and attached to the frame by a free swinging pivoted housing. There was no steering or power apparatus attached to it. It merely followed the direction set by the two front wheels.

After the plaintiff had driven his swather up to the pole and ascertained that he could not continue because of the guy wire he backed up the left end of the swather about six feet, then backed the right end around using the left wheel as a pivot. He then drove forward, that is to the east, and turned to the left around the guy wire. He missed the guy wire with the left front wheel. The wheat was seeded right up to the wire and he followed it around until he faced west. Then he turned to the north again. During this last maneuver the third wheel somehow came in contact with the guy wire. He did not see it strike the wire. He felt a bump, heard a crack as the pole broke. The transmission wires came down on the plaintiff and he was severely shocked and burned. After receiving two shocks while on the machine he was finally able to get off and get away. The swather continued north for a short distance and stalled in the roadway ditch. It was raining slightly at the time and after the plaintiff reached the ground he received three more shocks from electricity that pervaded the surrounding area. The plaintiff knew that the pole supported a high tension electric line.

Under the pleadings and the instructions of the court there were two primary issues to consider, first whether the defendant was guilty of negligence which was a proximate cause of plaintiff's injury, and second whether the plaintiff was guilty of negligence that contributed proximately to his injury. The rule is firmly established in this state that negligence, whether contributory or primary, is a question of fact for the jury unless the evidence is such that reasonable minds can draw but one conclusion therefrom. Huus v. Ringo, 76 N.D. 763, 39 N.W.2d 505; Bagg v. Otter Tail Power Co., 70 N.D. 704, 297 N.W. 774; Leonard v. North Dakota Co-op. Wool Marketing Association 72 N.D. 310, 6 N.W.2d 576; Pachl v. Officer, 79 N.D. 143, 54 N.W.2d 883.

We would point out with respect to the defendant's appeal from the order denying its motion for judgment notwithstanding the verdict that such a motion should not be granted unless the moving party is entitled to judgment on the merits as a matter of law. Aetna Indemnity Co. v. Schroeder, 12 N.D. 110, 95 N.W. 436; First State Bank of Eckman v. Kelly, 30 N.D. 84, 152 N.W. 125, Ann.Cas.1917D, 1044; Armstrong v. McDonald, 72 N.D. 28, 4 N.W.2d 191; Westerso v. City of Williston, 77 N.D. 251, 42 N.W.2d 429.

The jury having rendered a verdict for the plaintiff must have first determined that there was negligence on the part of the defendant that was a proximate cause of the accident and ensuing injury. The defendant challenges that determination and asserts that the evidence is insufficient as a matter of law to support it. While a distributor of high voltage electricity is not an insurer it does have a duty in erecting and maintaining its transmission lines to exercise care commensurate with the dangers involved. Keep v. Otter Tail Power Co., 201 Minn. 475, 277 N.W. 213; Greenwald v. Northern States Power Co., 226 Minn. 216, 32 N.W.2d 320; Polk v. City of Los Angeles, 26 Cal.2d 519, 159 P.2d 931; 18 Am.Jur., Electricity, Sec. 48. Care commensurate with the danger involved includes reasonable inspection. Polk v. City of Los Angeles, supra; Holmes v. Southern California Edison Co., 78 Cal.App.2d 43, 177 P.2d 32; Vannett v. Michigan Public Service Co., 289 Mich. 212, 286 N.W. 216; Dansbery v. Northern States Power Co., 188 Wis. 586, 206 N.W. 882. The duty to inspect is not confined to areas of dense population but applies as well to transmission lines over agricultural land. Howell v. San Joaquin Light & Power Corporation, 87 Cal.App. 44, 261 P. 1107.

The evidence shows that the pole that broke was thirty feet three inches in length. It was set five and one-half feet in the ground. The butt of the pole had been treated with a preservative. The pole broke between ten and eleven feet from the top. The distance to the next pole was three hundred seventy-five feet to the south and three hundred thirty-seven feet to the north. The pole was of western red cedar. At the point where it broke it had originally been over six inches in diameter. It had been affected with shell rot with the result that the sound wood had been reduced to a diameter of four to five inches at the point of breakage. The pole bore its...