Roberts v. Mississippi Power & Light Co.

• Decision Date: 23 November 1942
• Docket Number: 35134.
• Citation: Roberts v. Mississippi Power & Light Co., 10 So.2d 542, 193 Miss. 627 (Miss. 1942)
• Court: Mississippi Supreme Court
• Parties: ROBERTS et al. v. MISSISSIPPI POWER & LIGHT CO. et al.

10 So.2d 542

193 Miss. 627

ROBERTS et al. v. MISSISSIPPI POWER & LIGHT CO. et al.

No. 35134.

Supreme Court of Mississippi

November 23, 1942

Currie & Currie, of Hattiesburg, and R. C. Russell, of Magee for appellants.

A M. Nelson and Jackson, Young & Friend, all of Jackson, J B. Sykes, of Mendenhall, and Patterson & Patterson, of Monticello, for appellees.

ALEXANDER Justice.

Plaintiffs brought suit for damages arising from the death of Jack Roberts, a member of their family, who it is alleged was electrocuted when a long drilling auger which he was using came in contact with a highly charged power line maintained by the defendant company. At the conclusion of plaintiffs' testimony, a motion to exclude the evidence was sustained and judgment was entered for the defendants.

Plaintiffs' decedent was employed by the State Highway Department through one Patterson and was working under his orders and supervision at the time of his injury and death. The duties assigned to the deceased consisted of making certain soil tests by the use of a drilling auger whereby sample cores could be procured revealing the nature of the subsoil along a proposed highway route. This drilling auger was so constructed as to be manually employed and permitted extension in length by the addition of extra sections or joints of about three feet in length. Deceased was placed at this work with three other young men in a cultivated field and at a point on the right of way of the electric company almost but not exactly beneath an uninsulated power line of high voltage. At this point the wire was about 13 1/2 feet from the ground. Although the metal auger was built up by sections as the depth of the hole progressed, it was removed without being disjointed. At the time of the fatal injury, the hole had reached a depth of about 14 or 15 feet and when the auger was removed from the hole it was allowed to extend upward its full length, when it swayed or fell over onto the electric wire and received and conducted the voltage of its current to those operating it, resulting in the death of the said Jack Roberts.

The appeal presents the legal question whether, conceding the facts to be as outlined by plaintiffs' case, the defendants could be held to have violated a legal duty owing to deceased. Although the degree of care has been often said to vary with the degree of danger inherent in an instrumentality, a comprehensive definition of requisite care is "that degree of care commensurate with appreciable danger appraised in terms of ordinary prudence and interpreted in the light of the attendant circumstances", Supreme Instruments Corp. v. Lehr, 190 Miss. 600, 627, 199 So. 294, 1 So.2d 242, 245. The measure of prudence which is an element of the definition must in turn involve reasonable probabilities according to normal human experience. Such probability in turn involves not an absolute prescience but a degree of foreseeability which consists with normal experience and observation and which should equip the party sought to be charged with a prudence that envisages harm as a reasonable likelihood. Time, place and circumstances must be taken into account. Here, the place was that part of an open cultivated field which had been designated and used as a right of way for the stringing of the wires of the power company. It was in duty bound to use requisite care to see that its wires should not come in contact with and damage any person or property reasonably likely to be exposed thereto along its right of way. If it is to be held negligent with respect to plaintiffs' decedent, it must be held to have foreseen as a reasonable probability the engagement of deceased in some activity which would bring him in contact with its wire. Such presaged activity must of necessity have involved an actual spanning of the intervening height of 13 1/2 feet by both human and mechanical means whereby the deadly current could be conducted from the wire to the ground. While the case involves the highly dangerous medium of high voltage current its danger consists solely in the probability of actual contact and the degree of care requisite in its maintenance is such as reasonably guards against contacts which according to human knowledge and experience are likely to occur. This test was applied in Burch v. Southern Bell Tel. & Tel. Co., 178 Miss. 407, 173 So. 300, 302, where plaintiff was injured when he was caught by a telephone wire while riding on top of a load of hay stacked on a truck. This court held: "Telephone and telegraph lines crossing a highway must be high enough for the usual and ordinary travel in that area, including the usual and ordinary commercial uses of the highway, but they are not required on pain of liability to be high enough for extraordinary travel, as to which the traveler must keep a lookout. 62 C.J., p. 59. * * * But the roadway here in question was not a public thoroughfare but was a private way, and the owner of the premises was not required to anticipate and provide for that full extent of height required of a general public highway." Although this case does involve a high...