Saylor v. Enterprise Elec. Co.

• Decision Date: 22 January 1924
• Citation: 222 P. 304,110 Or. 231
• Parties: SAYLOR v. ENTERPRISE ELECTRIC CO.
• Court: Oregon Supreme Court

222 P. 304

110 Or. 231

SAYLOR v. ENTERPRISE ELECTRIC CO.

Supreme Court of Oregon

January 22, 1924

In Banc.

Appeal from Circuit Court, Wallowa County; J. W. Knowles, Judge.

Action by Grace M. Saylor, administratrix, against the Enterprise Electric Company. Judgment for plaintiff, and defendant appeals. Affirmed.

See also, 106 Or. 421, 212 P. 477.

This is an action for damages, prosecuted by Grace M. Saylor, as administratrix of the estate of her deceased husband, Carl Saylor, who was killed on July 19, 1921, by a shock from an electric current. Saylor was a farmer, and at the time of the accident he was harvesting his crop of hay grown upon the North McCully ranch, situate a short distance north of Joseph, Wallowa county, Or., which he had leased from F. D McCully. Another ranch, situate about a mile and a half east of the town of Joseph, is referred to in these proceedings as the East McCully ranch.

The Upper Prairie Creek country, which is contiguous to the east and north sides of the town of Joseph, is an agricultural district, approximately 5 miles wide and something less than 10 miles in length. Abundant crops of hay are grown and harvested annually in that section of the country, and for the purpose of stacking their hay the farmers of the district make general use of movable implements known as hay derricks. In harvesting their crops it was the custom of the farmers in that district to move such derricks from field to field and from farm to farm, through gateways, over the public roads of the district and of the county, all of which it is alleged defendant well knew.

At the time of the accident, Saylor was transporting a hay derrick by means of two spans of horses hitched thereto, from the East McCully ranch to the North McCully ranch. In so doing it was necessary for him to drive to the public highway through a gateway located about 200 feet northeast of the dwelling house situate on the East McCully ranch. This gateway was used by Saylor and others as a place of ingress to, and egress from, the ranch, when leaving or going upon the highway, which extended along the east and north sides of the East McCully ranch.

On July 19, 1921, the day of the accident, and prior thereto, the defendant was, and had been, transmitting, from one of its plants at Joseph, Or., to various farmers living in Upper Prairie Creek district, through transmission wires fastened to poles located, at intervals of 300 feet, along the county road and on the east line of the East McCully ranch electricity of a dangerous voltage. The McCully gateway, at which point the accident occurred. was about midway between two poles. The transmission wires were strung over and above the gateway opening from the McCully ranch into the county road.

After alleging the duty of the defendant company to use every device, care, and precaution, which it is practicable to use for the protection of life and limb, the plaintiff avers: That the defendant suspended its transmission wires in a careless manner, and particularly over the gateway, at a height of about 17 feet above the ground. That while such wires were carelessly suspended at that height above and across the gateway, the defendant negligently conveyed over its wires electricity of a dangerous voltage, and that its wires were uninsulated. That by reason thereof persons who were engaged in their lawful duties, in making ingress to and egress from the county road, were obliged to expose themselves to the hazards and dangers incident thereto.

"That on the 19th day of July, 1921, and for a long time prior thereto, Carl Saylor, as lessee, was engaged in harvesting hay upon the said North McCully ranch, and that, as part of said work or said duty, the said Carl Saylor was transporting from East McCully ranch to the leased ranch north of Joseph, by way of said gateway and over the county road, the aforesaid hay derrick, which hay derrick the said Carl Saylor was that day using in his work of harvesting hay; and that, while so transporting said hay derrick from the East McCully ranch to the county road, said hay derrick, and particularly that part of said hay derrick consisting of a wire or steel cable, came into contact with the transmission wires herein referred to, and that by reason of the careless and negligent manner in which said transmission wires were suspended by defendant along the road and over and above and across said gateway as hereinbefore set out, electricity of a dangerous voltage was deflected over said hay derrick, and particularly said cable, and while said electricity was so deflected over said cable, and while Carl Saylor was attempting to transport said derrick through said gateway from the field to the county road to the said leased ranch of F. D. McCully, north of Joseph, said Carl Saylor, by reason of the negligence of the defendant, as hereinbefore set out, received a violent shock of electricity from said wire, * * * then and there burning and killing the said Carl Saylor."

Judgment was sought in the sum of $7,500.

The defendant, answering, denied the material allegations of the complaint charging it with negligence, and averred contributory negligence of Saylor as a defense. Among other things, it alleged:

"That in moving said hay derrick from said land in possession of said Lyon, said wires would not clear said hay derrick, and said hay derrick would not pass under said wires without coming in contact therewith, and said Carl Saylor * * * well knew that said wires would not clear said hay derrick, * * * and * * * well knew that said wires were carrying a high current or voltage of electricity, and that it was dangerous to permit or allow said hay derrick, or any part thereof, to come in contact with said wires.

"That on said 19th day of July, 1921, the beam of said hay derrick was placed in such position that in moving said hay derrick * * * said wires would not clear said beam and said hay derrick would not pass under said wires without said beam coming in contact therewith, although said beam could have been, and should have been, placed in such position that said wires would not come in contact with said beam in moving said hay derrick under said wires, and said Carl Saylor, at the time of attempting to move said hay derrick, and prior thereto, well knew that said wires would not clear said beam, and well knew that said beam would come in contact with said wires, and well knew that said beam could have been placed, and should have been placed, in such position that the same would not come in contact with said wires in the moving of said hay derrick.

"That said Carl Saylor, * * * well knowing that said wires were carrying a high current or voltage of electricity, and that it was dangerous to permit or allow said hay derrick, or any part thereof, to come in contact with said wires, carelessly and negligently moved said hay derrick into and against said wires. * * *

"That after said hay derrick and said metal part thereof * * * had come in contact with said wires, said Carl Saylor and an employee * * * each received a shock of electricity by touching and coming in contact with said hay derrick, or some metal part thereof, or some metal thereon.

"That * * * Carl Saylor was told and warned to get away from said hay derrick and not to come in contact therewith. * * *

"That after said hay derrick and said metal part thereof * * * had come in contact with said wires, said Carl Saylor well knew that said hay derrick and said metal part thereof and said metal cable thereon were charged with electricity, and well knew that it was dangerous to be or remain on or about said hay derrick, or to come in contact therewith, or with any part thereof, or with said metal part thereof, or with said metal cable thereon, and well knew that by reason of the same being charged with electricity there was danger of his being killed if he should be or remain on or about said hay derrick or should come in contact therewith, or with any part thereof, or with said metal part thereof, or with said metal cable thereon.

"That * * * said Carl Saylor, well knowing that it was dangerous to be or remain on or about said hay derrick or to come in contact with any part thereof, or with the metal part thereof, * * * and well knowing that by reason of the same being charged with electricity there was danger of his being killed if he should be or remain on or about said hay derrick or should come in contact therewith, or with any part thereof, or with said metal part thereof, * * * carelessly and negligently went upon said hay derrick and carelessly and negligently remained on and about said hay derrick, and carelessly and negligently came in contact with said hay derrick, or with some part thereof, or with said metal part thereof, or with said metal cable thereon, and by reason thereof a current of electricity was conducted from said wires and through and over said hay derrick and said metal part thereof, and said metal cable thereon, and said current of electricity passed through the body of said Carl Saylor, then and there burning and killing said Carl Saylor.

"That the death of said Carl Saylor * * * was caused solely by the means and in the manner as herein alleged, and was solely the result of, and was caused solely by, his own acts and his own carelessness and negligence. * * *"

On motion of plaintiff, the court ordered the following struck from the answer:

"Although said wires could and would have been killed to permit the moving of said hay derrick, and shortly after the death of said Carl Saylor, as hereinafter alleged, said wires were killed, in order to permit the removal of said hay derrick."

Plaintiff replied, denying all new matter contained in the answer. The trial...