Probart v. Idaho Power Co.

• Decision Date: 10 June 1953
• Docket Number: No. 7855,7855
• Citation: 258 P.2d 361,74 Idaho 119
• Parties: PROBART et al. v. IDAHO POWER CO. et al.
• Court: Idaho Supreme Court

Page 361

258 P.2d 361

74 Idaho 119

PROBART et al. v. IDAHO POWER CO. et al.

No. 7855.

Supreme Court of Idaho.

June 10, 1953.

Merrill & Merrill, Pocatello, Hawley & Marcus and A. C. Inman, Boise, for appellant.

E. B. Smith, Boise, for Idaho Compensation Co.

Robert M. Terrell and Anderson & Anderson, Pocatello, for respondents.

On Rehearing.

THOMAS, Justice.

Plaintiffs, hereinafter referred to as respondents, brought an action against defendant, Idaho Power Company, hereinafter referred to as appellant, seeking to recover damages for the death of Gerald H. Probart which resulted by reason of the boom of a crane operated by a fellow employee of Partner's Structural Steel Company contacting a high tension electric wire of appellant.

At the time decedent, the crane operator and another fellow employee were engaged in moving a steel beam, 35 feet in length, from one side of a building then under construction onto Balsam Street and underneath the transmission line of appellant company thence onto Pole Line Road in Pocatello, Idaho, thence north to the front portion of the building for location. Decedent was engaged in steadying one end of the beam at the time the boom contacted the wire.

Idaho Compensation Company was made a party defendant. It was insurance carrier of Partner's Structural Steel Company, the employer of deceased, under the Workmen's Compensation Law. Idaho Compensation Company admitted liability for payment of compensation and the Industrial Accident Board made awards thereof pursuant to such admitted liability. It asserted subrogated rights of recovery of the entire amount of the benefit payments it made and the present worth of all future payments it obligated itself to make.

The jury returned a verdict and judgment was entered for respondents for the sum of $50,200.

The payments made by Idaho Compensation Company and those it obligated itself to pay aggregated $14,521.89. The trial court entered judgment in its favor only for $58356.49, which represented the amount it paid plus the present worth of all future payments computed at 4% compounded annually, less 50% of such latter amount allowed as attorney fees payable to the attorneys for respondents.

Idaho Compensation Company cross-appealed from said judgment, contending that if the judgment below for respondent be upheld, then under its subrogation rights it would be entitled to have judgment for what it had already paid and the present value of any portion of the award to be paid in the future computed at 2% compounded annually, without deduction of any sum as attorney fees for the services of respondents' attorneys. Respondents by agreement with their attorneys had agreed to pay as attorney fees 50% of any recovery made.

From the order and judgment, Idaho Power Company appealed. Idaho Compensation Company also cross-appealed from that portion of the judgment awarding any attorneys fees out of the recovery of Idaho Compensation Company under its rights of subrogation and in computing the present worth of future payments at 4% compounded annually rather than at 2%.

The appellant has made some 29 assignments of error, many of which are interrelated and overlapping, therein urging among other things that there was an entire failure of proof of actionable negligence on the part of appellant; that the proximate cause of the injury and resultant death was due to the direct intervening negligence of the operator of the crane and also that the deceased was contributorily negligent as a matter of law; that the trial court erred in admittance of certain evidence over objection and in giving certain instructions and in refusing to give several requested instructions.

We will first consider those assignments of error which challenge the sufficiency of the evidence as a matter of law, to establish any actionable negligence on the part of appellant.

The alleged and asserted acts of negligence upon which the respondent relied for recovery of damages were based generally on the proposition that appellant was guilty of negligence in failing to have its lines a sufficient distance above the ground over and across Balsam Street at its intersection with and along Pole Line Road, particularly under the changed conditions then existing, so as to afford proper protection to people entitled to use such street and road and to permit the free passage of cranse and derricks traveling along the same in the vicinity of such intersection in transporting building materials and other objects along and upon said streets and roads without making contact therewith; upon the same grounds and for the same reasons the respondents assert and allege and contend that the appellant was also negligent in failing to insulate such transmission lines.

The appellant constructed and maintained an uninsulated high voltage transmission line over and along Pole Line Road which intersects Balsam Street. It was constructed for the purpose of and it did carry 12,500 volts between phases or 7200 volts to ground. It was no less than 21 feet, 9 inches above the ground at the area of the accident.

There was ample clearance for the crane in moving the beam to its intended location, without lifting the boom to a height that it contact the line.

In recent years and some time after the line was constructed, the area where the accident occurred experienced marked development industrially and as an urban residential district.

For several years immediately preceding the accident it was the common practice of many workers and operators of cranes and derricks in Pocatello and vicinity to use the streets and highways thereon for the transportation and movement of such machinery which was employed quite generally in construction work; while transporting such machinery along the streets and highways it was a general practice to lower the boom; many of the cranes so used were much higher than the one involved in the accident; two of them in the past had contacted an electric transmission line but on each occasion without injury or damage; no report of such experience was made and the company had no knowledge thereof.

The appellant had no actual knowledge that the particular building was under construction or any knowledge that there was any necessity for or the operation of the crane at the particular time and place.

The appellant urges that it constructed and maintains its line in accordance with accepted and sound practices and at such a distance from the ground so as to admit the lawful use of such streets and roads for all usual, common and ordinary purposes without danger and that it had met all reasonable standards of due care and duty enjoined upon it as a matter of law in these respects.

The United States Department of Commerce, National Bureau of Standards, adopted a set of safety rules, relative to the installation and maintenance of electric transmission lines, being Handbook H-32.

The trial court refused to receive the entire handbook in evidence although it allowed portions thereof to be admitted. The handbook provides for a minimum vertical clearance of 20 feet above the ground with reference to electric transmission lines carrying not less than 750 nor more than 15,000 volts, in areas such as that where the accident occurred, if the wires pass over a public street, alley or road.

The Public Utilities Commission of Idaho, pursuant to legislative authority, is empowered to require every public utility to maintain and operate its lines in such a manner as to promote and safeguard the safety of the public and to this end empowered to prescribe certain reasonable standards of installation, use, maintenance and operation thereof. Sec. 61-515, I.C.

The Public Utilities Commission pursuant to such authority, by Order No. 72 of June 25, 1943, and supplemental order No. 81, entered January 7, 1949, adopted the 5th edition of the National Electric Safety Code, Handbook H-32, as a proper and reasonable standard for the installation and maintenance of electrical supply and communication lines.

It is the duty of and the supreme court will take judicial notice of an order of the Public Utilities Commission adopted in accordance with and pursuant to statutory authority. State v. Taylor, 58 Idaho 656, 78 P.2d 125; Bunten v. Eastern Minnesota Power Co., 178 Minn. 604, 228 N.W. 332; Nicolai v. Wisconsin Power & Light Co., 227 Wis. 83, 277 N.W. 674; Verbeten v. Huettl, 253 Wis. 510, 34 N.W.2d 803.

It is admitted and there is no contention otherwise that the highest degree of care must be exercised by those engaged in the generation and transmission of electric energy. Chase v. Washington Water Power Co., 62 Idaho 298, 111 P.2d 872. It is urged by the appellant that it met this standard of care and that the evidence fails as a matter of law to establish negligence on its part.

The duty to insulate is not an absolute duty. However, the exercise of due care requires an electric company to insulate all wires carefully and properly where there is reasonable probability of human contact therewith or, in the alternative, such wires must be located so as to be comparatively speaking, harmless; if the company maintains its wires at such height above the ground that there is no reason to anticipate or probability that people using the highways or the area over which the wires are suspended will come in contact with them, insulation is not required. Trimyer v. Norfolk Tallow Co., 192 Va. 776, 66 S.E.2d 441; Croxton v. Duke Power Co., 4 Cir., 181 F.2d 306; 29 C.J.S., Electricity, § 44, p. 589.

Where a safety code is adopted by the state and constitutes a guide for electric companies, the construction and maintenance of a line in accordance with such code, constitutes prima facie evidence of the absence of negligence. Douglas v. Maloney, 105 Cal.App.2d 824, 233 P.2d 59 at page 61; Lozano v. Pacific Gas & Electric Co., 70 Cal.App.2d 415, 161 P.2d 74 at page 79; Arkansas Power & Light Co. v....