Public Service Co. of Ind. v. De Ark
| Decision Date | 06 June 1950 |
| Docket Number | No. 17952,17952 |
| Citation | 92 N.E.2d 723,120 Ind.App. 353 |
| Parties | PUBLIC SERVICE CO. OF INDIANA, Inc. v. DE ARK. |
| Court | Indiana Appellate Court |
William P. Evans, Owen S. Boling, Indianapolis, Bulleit & Orbison, Telford B. Orbison, New Albany, for appellant.
Prentice & Prentice, Robert J. Prentice, Jeffersonville, Robert R. Kelso, New Albany, for appellee.
This is an appeal from a judgment for damages for the wrongful death of appellee's decedent, which was allegedly caused by appellant's negligence. Issues were joined on appellee's third amended complaint to which a demurrer was addressed and overruled, and by appellant's answer of special denial. The cause was tried by a jury and at the close of all of the evidence, appellant moved for a directed verdict which was overruled, the jury returned a verdict for the plaintiff, and judgment was rendered thereon in appellee's favor for damages in the sum of $7,750.
From an examination of the record, upon a basis of the evidence most favorable to appellee, the following facts appear: The appellant owned and operated an electric power transmission line running in a northerly direction between Jeffersonville and Utica, Indiana, and such line extended for a number of miles northward from Utica along and parallel to the Ohio River. The line carried 2,300 volts and extending from Utica north it was increased to 6,900 volts. The 6,900 volt line was carried on poles 25 feet above the ground and the live wire was attached to the top of the poles by pole-pins, and the neutral wire was attached by clevices about 30 inches below the live wire. The energized wire was not covered by mechanical insulation, but the construction of the poles and the wires used were in compliance with the recommendations of the National Electrical Safety Code as promulgated by the National Bureau of Standards of the Department of Commerce.
The Town of Utica, its inhabitants, churches, and schools were served off of the 2,300 volt line. The 6,900 volt line served the Conservation Club, its caretakers, some summer camps and a number of other permanent residents. There were telephone poles on the left side of the highway going north, electric poles on the right, and a number of trees on both sides of the highway.
During the month of March, 1945, the territory in question and in which the decedent was injured was visited by the second highest flood in the history of the Ohio River, and a greater part of the Town of Utica was inundated. The flood waters extended for several miles beyond the banks of the river and inundated the Utica Pike to a depth of 18 feet. The crest of the flood was reached about March 9th.
For several days plaintiff's decedent's house had been under the flood waters, and he could not get to his regular work, and he had been staying at the home of a relative which was on higher ground. In the afternoon of March 9, 1945, with the flood conditions existing as hereinbefore described, the plaintiff's decedent and his son, who was 14 years of age, started out in a small flat bottom rowboat to search for and appropriate 'drift', articles of property floating down the river. The evidence disclosed that there were 40 or 50 boats in the Town of Utica; that most families living there had a boat, and that nearly half the people in the town engaged in salvaging during floods and searched for 'drift'.
On the day in question, the plaintiff's decedent and his son went up north along the river in the small rowboat, and used the open space between appellant's distribution line and the telephone line over the waters covering the Utica Pike. A garage had been carried down in the flood waters to a point in the Utica Pike about a mile north of Utica and it there became lodged against appellant's utility pole. On said afternoon when plaintiff's decedent and his son in such rowboat reached a point about 400 feet north of the pole against which the garage was lodged, they anchored by holding on to the branches of tree tops until they sighted a metal oil barrel or drum floating by, which they captured and started to shore with it, the decedent sitting in the boat holding the barrel in his hands in the front of the boat. They passed under appellant's electric power line turning toward shore, and finding the bank at that point too steep and the barrel too heavy, they then followed the high ground down, along and above the public highway on the water in order that they might reach a lower landing. When they reached the point where the garage was lodged they could not get through on the waters over the public highway, and they went out into the river again in order to get around the garage, and again passed under appellant's power line, and came down the river about 100 feet and then again headed in toward the pike and the power line. The son was rowing the boat, and as they came in from the river, he was sitting facing the river. The decedent was sitting in the front of the boat facing the power line, and holding the barrel in front of the boat with his hands. Decedent's son testified that when they reached appellant's power line he saw a flash reflection in the water followed by 'a fizzing--a buzzing noise,' and he looked around and decedent was in the water. The son caught hold of him with one hand, and held on until a Mr. Broy, who was about 50 feet away, going out in the river, came to his rescue.
There is evidence that at the time of the accident, appellant's power line was under water. As the garage which was lodged against appellant's pole would arise and sink, it would cause the pole against which it was lodged to lean, and the wire south of the pole would go in and out of the water. There was evidence of tests made that the line would be de-energized after two seconds of being under water. However, there was evidence that the lines were energized and under water at the time of the accident.
Decedent was placed in a boat after the accident and was taken to the home of a Mr. Lewis, where he was found to have burns on his hands, a large burn on his back, and a severe burn on his right ankle. He was attended by a doctor, and was then taken to a hospital where he remained three or four days, and he was then returned to his temporary home of his relative. The doctor continued to treat him until his death on June 8, 1945. About 10 days before his death, his doctor discovered indications of tetanus infection and decedent was...
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