Orr v. Des Moines Elec. Light Co.
| Decision Date | 14 December 1928 |
| Docket Number | 38970 |
| Citation | 222 N.W. 560,207 Iowa 1149 |
| Parties | LEONA ORR, Administratrix, Appellee, v. DES MOINES ELECTRIC LIGHT COMPANY et al., Appellants |
| Court | Iowa Supreme Court |
REHEARING DENIED MARCH 15, 1929.
Appeal from Poweshiek District Court.--D. W. HAMILTON, Judge.
An action for damages for the death of Clarence Orr, alleged to have been caused by the negligence of the defendant company. From a judgment on a verdict of the jury in favor of plaintiff, defendant appeals.
Reversed.
Bradshaw Schenk & Fowler and Bechly, McNeil & Scovel, for appellants.
C. F Dickson and T. J. Bray, for appellee.
ALBERT, J. STEVENS, C. J., and FAVILLE, DE GRAFF, and KINDIG, JJ., concur. EVANS and MORLING, JJ., dissent on second division. WAGNER, J., takes no part.
I. The deceased, Clarence Orr, was a plumber by occupation, and at the time in question, was engaged in installing some plumbing in the residence of one Harold Bone, in the town of Montezuma. Only a portion of the basement under the Bone residence was excavated, and the plumbing work which Orr was engaged in installing was on the first floor of the building and directly over the unexcavated portion of the basement. The wall between the excavated and the unexcavated portions of the basement was of stone, and there was an opening about 24 inches square, to give access to the unexcavated portion. The unexcavated portion was about 30 inches in height. As usual, there was not sufficient light in the unexcavated portion to work, and the deceased was using an extension cord, with a 50-watt lamp attached thereto, which cord was attached to an electric-light fixture in the excavated portion of the basement. This extension cord and lamp were owned and furnished by the deceased, and were of the type generally used in such work.
The electric distribution system of the defendant was carried on the ordinary line of poles and cross-arms, which line extended along and in front of the Bone residence. The line consisted of two primary wires, attached at the extreme end of the cross-arm on each pole. This primary system carried a voltage of about 2,300. The secondary system of three wires was carried by these same cross-arms, near the center thereof. There was a clearance between each of these wires of 12 inches. Two wires of the secondary system were what is known as "hot secondaries," and carried a voltage of approximately 110/120 volts. The third was known as a "neutral secondary, " and carried no electricity. This secondary system was grounded by means of a wire connected between the neutral secondary and a pipe driven into the ground at a transformer. The purpose of this ground is to prevent the escape of electricity from the primary to the secondary system. At a point somewhat south of the Bone residence, and near the top of the pole, is what is designated as a "transformer." The purpose of this mechanism is to modify or reduce the electric current of the primary system to 110/120 volts, which is the usual voltage used for lighting and heating purposes. This secondary system, carrying the reduced voltage, served and supplied some 17 different customers, among which was the Bone residence. This system had been in use for several years, and no complaint of the service had ever been received from Bone or any of the other customers receiving service through such system. This electric line in front of the Bone residence paralleled the street running north and south. One Fitsimmons owns the property adjoining that of Bone on the south. In front of the Fitsimmons residence, and hence between the Bone residence and the transformer, at the time in question there was a box elder tree, standing in the parking, which tree had branches running up toward the electric wires of defendant company, one limb extending out to the west over the wire. This limb at the place of leaving the tree was 4 or 5 inches in diameter. Several of the top branches rubbed on the wires, one branch about the size of a fork handle, rubbing the east wire; and there was a space of 6 or 8 inches on the east wire where the insulation was rubbed off. There were a number of branches among these wires. There is no evidence, however, that any of these limbs showed any evidence of having been burned or seared.
Defendant's experts in electrical appliances tested the system on the day following this accident, and the substance of their testimony is that the system was in good condition, and that it was impossible for any electricity to escape from the primary to the secondary system, thus increasing the voltage of the secondary system. There is also testimony from the employees of the defendant that, on the day in question, these employees were engaged in testing meters on this particular line, and that they tested the meter in the Bone residence between 8 and 9 o'clock that morning; that, in so testing the meter, they found that there was no excessive amount of electricity passing through the same; and that by their manner of testing, had there been such excess flow of current, they would have discovered same.
The deceased left his residence for work, on the morning in question, about 7 o'clock. He went to the Bone residence, and the last person who saw him alive was one Ross Bowers, a carpenter who was also working there. He testifies that he saw the deceased about 8 o'clock in the morning. From this time on, the record is silent, until about 10:30 or 11 o'clock in the morning, when Mr. Bone's small son called Bowers to the basement. Bowers looked into the opening in the excavated portion of the basement, and called to Orr, and, receiving no response, reached in and touched Orr's body. Crawling in, he tried to turn Orr over on his back, by taking hold of his left arm, and got an electric shock. With the aid of others, the body was removed to the excavated portion of the basement and laid on the floor, and a doctor summoned. The doctor testified that, when he arrived, rigor mortis had set in in Orr's arms, his clothing was found to be wet, his color a livid dark, and his lips apparently more or less swollen; that in the region of the heart there was an area about the size of a hand that had a baked appearance, whitish, like the breast of a chicken, when thoroughly cooked; that the hands were white, and showed burns at the edge of the skin in places, and the outer edge had commenced to slough. He further testified that the burns were the same kind as those that result from intense heat. He further testified:
As to the position in which deceased was found, the witness Bowers testified that the body was lying face downward on the ground; that, held tightly against the breast, in the region of the heart, was a 50-watt electric lamp, clasped with the right hand over the lamp, and with the left hand over the right; that it was necessary to unclasp the hands, in order to get it loose; that the lamp was completely smothered by the body; that the inside of the right hand was severely burned, and the left hand slightly. There was a place on the breast that looked as if it might have been burned. This was where the lamp was held against the body.
Plaintiff's expert testified that it is very improbable that a person could be electrocuted by 110 to 120 volts, under the conditions described in this testimony. He says, on cross-examination, that it is possible,--that he had heard of cases where a man was killed by 110 volts; and closed by saying that, in his opinion, it was possible for a voltage of 110 to cause death.
With reference to the limb of the tree, a witness testified:
Defendant's expert testified that, in his opinion, burns of the character described as having been found on deceased's body could have been caused by the heat of a 50-watt electric lamp, when smothered under the body of the deceased and held tightly clasped against his breast; that a lower degree of heat is required to burn flesh than to burn cloth. This witness further testified that, by actual experiment, when a 50-watt lamp was covered with a piece of cloth and then by a piece of beefsteak, it was found that the temperature exceeded 250 degrees in a very short time, and 350 degrees in three hours. He further testified that meat cooked at the boiling point, 212 Fahrenheit. To a hypothetical question stating the facts in the case, this witness gives it as his opinion that the burns on Orr's body could have been caused by the heat of the electric lamp used by Orr.
This gives a general summary of the situation in the case, without attempting to recite all of the testimony introduced.
The theory of the plaintiff was that Orr was killed by reason of negligence on the part of the defendant in permitting the secondary system of wires to become overcharged with electric current from its primary system. The theory of the defendant was that this secondary system was not overcharged, and that therefore, it was not liable. The burden was on the plaintiff, of course, to establish that Orr's death was caused by the alleged negligence of the defendant...
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