Scott v. Claiborne Elec. Co-op.

• Decision Date: 31 March 1943
• Docket Number: 6596.
• Citation: 13 So.2d 524
• Court: Court of Appeal of Louisiana — District of US
• Parties: SCOTT v. CLAIBORNE ELECTRIC COOPERATIVE, Inc., et al.

13 So.2d 524

SCOTT v. CLAIBORNE ELECTRIC COOPERATIVE, Inc., et al.

No. 6596.

Court of Appeals of Louisiana, Second Circuit

March 31, 1943

Rehearing Denied April 29, 1943. [Copyrighted Material Omitted]

Cook Lee, Clark & Egan, of Shreveport, for appellants.

Seals & Atkins, of Homer, for appellees.

TALIAFERRO Judge.

Tillman Scott, a colored man, age twenty-two years, was electrocuted about the hour of 9:30 A.M. on April 26, 1942, when his body contacted a down high voltage wire of Claiborne Electric Cooperative Inc. (hereinafter referred to as defendant), two miles north of the town of Homer in Claiborne Parish. His widow, Eva Scott, individually and as natural tutrix of Tillman Scott, Jr., posthumous son and sole heir of the deceased, instituted this suit against said corporation and its insurer, Employers' Liability Assurance Corporation, Ltd., of the State of Massachusetts, to recover damages suffered and experienced by them as the result and consequences of the tragic death of the husband and father, in the sum of $25,000.

The accident occurred on a dam which impounded water on a farm of Robert G. Harmon. The dimensions of the dam are variously estimated by several witnesses, but in briefs there is very little difference between counsel as regards them. Each side says the dam was 150 feet long, 14 feet high with a crown of 4 feet. Plaintiffs' counsel say the base was 12 feet, whereas defendants' say it was 16 feet. The difference is of no great importance. Normally, the impounded water covered approximately three-fourths of an acre, referred to as a pond. The dam extended easterly and westerly. It connected two high hills which extended northerly therefrom and was paralleled by a public highway. The watershed was approximately thirty acres. The pond's normal average depth at the dam was between 7 feet and 10 feet.

The dam was made from natural earth and was constructed by Harmon in 1922 to serve his property. However, it was not enclosed and the pond was freely used by all persons who wished to do so. Swimming and fishing therein were commonly engaged in by residents of the community.

A well beaten narrow path ran the entire length of the dam upon which pedestrians and stock traveled at will, particularly people living west of the pond who desired to reach the highway by the shortest route. A growth of young trees, several feet high, weeds, briars, etc., covered the crown of the dam and its sides. These appear to have been denser and higher on the western half. Foliage was well developed at date of the accident.

In June, 1939, defendant constructed a high power electric line in Claiborne Parish and adjacent territory, the route of which passed over Harmon's property from north to south. An easement or right-of-way for said line was procured from him, but the instrument evidencing same has not been registered in Claiborne Parish and, therefore, we are without knowledge concerning its terms and conditions.

Defendant erected one of its 35 foot poles in the center of the dam about midway its length. The pole was 8 inches in diameter and was sunk 7 feet or about half way from the top of the dam to its base. Two wires were then attached to it. When the dam was erected a drain pipe 8 inches in diameter was put through it. The record does not show exactly how far this pipe was below the surface of the dam. It is shown that the pole was sunk against or very near to this pipe, the opening of which was stopped up in 1941 and remained in that condition to the time of the accident. There was also a spillway at the dam's eastern end. The pipe and the spillway were adequate to prevent overflow of the dam until the pipe was stopped up.

Some time during the year 1941 another electric wire was added to the power line and at that time an 8 foot crossbar was attached to the pole. All three wires were then affixed to the crossbar.

During the night of April 25th-26th, 1942, an unusually heavy rain fell throughout the territory wherein the dam is located.

It is not proven, as alleged and argued, that the rain was unprecedented. The accumulated water ran over the dam causing a crevasse therein at the situs of the pole 6 or 7 feet deep and about 15 feet wide. The pole washed out and fell westerly across the crevasse with the crossarm suspended erect or nearly so above the western slope of the dam. The foot of the pole extended southerly from the base. The three wires remained in place on the crossarm, one of which was 4 feet above the ground, while the others were 6 or 7 feet above it. All of them crossed the path very close to the western edge of the crevasse.

The deceased and his stepfather, John Pitts, lived on a farm a short distance from the dam. In early morning, following cessation of the rain, Pitts and the deceased walked to the home of Sam Ferguson, a tenant of Harmon, who also looked after the Harmon property. The three, at Ferguson's suggestion, walked westerly to look over a tract of his cotton and when this had been done they started back to their homes, which could be reached more quickly by using the dam. They knew the dam had broken but did not think the crevasse as large as it was. Several feet of water remained in the pond. When they reached the dam Pitts was ahead, Scott next and Ferguson last. They entered upon the path but, evidently on account of the trees, weeds and foliage, neither saw the wires across the path until Pitts almost walked into the lowest one. He suddenly stooped under it and at the same time holloed to the others not to touch it, and at this juncture the earth beneath his feet gave way and he was precipitated to the bottom of the crevasse. Scott was not over three feet behind him. Evidently Pitts' warning was not given in time for Scott to benefit from it. He walked abreast into the lowest wire and was killed. Ferguson was uninjured.

Actionable acts of negligence, constituting the proximate cause of the accident, are charged against the defendant. These are:

1. By placing the pole, which supported uninsulated highly charged electric wires, in the dam, which, from its very nature, location, surroundings, etc., was unsafe for same; that sinking the pole in the dam as was done, was calculated to and did, in fact, weaken its strength as a barrier to the impounded waters, thereby enhancing the danger of the dam breaking where it did and endangering the lives of persons rightfully using same, as did happen.

2. Allowing the drain pipe to become and remain clogged, and for lack of outlet for excessive rainfall the dam was frequently overflowed at or near the pole which caused a shallow drain across the dam; that repeated overflows finally brought about caving and sloughing of the earth on the pole's south side; that this potential dangerous physical condition was easily observable by anyone who inspected the locus; that this condition remained unrepaired from many months prior and to the time of the accident; that the failure to make proper inspection of the dam and to make necessary repairs thereto constituted negligence of the grossest sort.

3. Failure of defendant, after the rainstorm, to inspect its line for down live wires, especially on or about the dam to 9:30 A.M. April 26th, the time deceased met his death.

Defendants specially plead that deceased when killed was a trespasser. They deny that there was any negligence whatever on defendant's part, in placing, erecting and maintaining the pole involved in this case, and aver that the break of the dam was an act of God. This defense, however, appears to have been abandoned. In the alternative, the negligence of the deceased in walking into and against the wire, then, as is alleged, in plain view, after being warned by Pitts not to touch the wire, is pleaded in bar of recovery by his widow and heir.

Trial of the case resulted in a judgment of $4,000 in favor of each plaintiff. Defendants prosecute this appeal which has been answered by plaintiffs wherein they pray that the judgment be increased to the amount for which sued.

No one knows exactly how the crevasse occurred. It could have occurred in different ways, viz:

1. By water seeping along the drain pipe, gradually widening the avenue of escape and undermining that portion of the dam immediately above it;

2. By caving and sloughing from the south side of the pole; and

3. By a blowout from the north side of the dam due to increased pressure from the impounded and overflowing water.

We are of the opinion that the placing of the pole in the levee in the manner done amounted to negligence per se. To us this conclusion appears obviously sound. No attempt was made through testimony of engineers to justify the action of defendant in selecting this narrow levee as a basis for one of its large poles. Defendant's lineman who repaired the wires and sank a new pole on solid ground south of the dam, testified that he would not have put the pole in the dam had he originally been in charge of constructing the line; but that he would have placed it where he did the new one after the accident.

To assert that the pole was safely and prudently located ignores common human experience in combating flood waters of the many rivers of this nation, on whose banks protecting levees are built. When these rivers are high above flood stage levees thereon are constantly guarded in the hope of preventing crevasses. The maximum of alertness has often proven futile.

The dam in question was constructed of loose earth. Its base was narrow its crown much more so. The pressure of above normal volume of water was at all times a potential threat to it. This danger was augmented from time to time as the water's level rose from heavy rainfall. The danger of the dam failing was further increased by...