Shank v. Great Shoshone & Twin Falls Water Power Co.

• Decision Date: 12 June 1913
• Docket Number: 2,178.
• Citation: 205 F. 833
• Parties: SHANK v. GREAT SHOSHONE & TWIN FALLS WATER POWER CO.
• Court: U.S. Court of Appeals — Ninth Circuit

205 F. 833

SHANK v. GREAT SHOSHONE & TWIN FALLS WATER POWER CO.

No. 2,178.

United States Court of Appeals, Ninth Circuit.

June 12, 1913

This is an action to recover damages for personal injuries received by the plaintiff by reason of a haystacker or derrick which he was moving along the public highway near the town of Buhl in the state of Idaho, coming in contact with the power transmission wires of the defendant.

The derrick or haystacker had a base or foundation of wood about 14 feet square. The timbers forming the base or foundation were 6 by 8 inches, and 16 feet in length, projecting at the ends about a foot from the square base. In the center of the square base were two pieces of timber 4 inches by 6 inches to which was attached an upright mast of wood about 22 feet in height. Across the top of the mast and connected therewith by a hinge was placed a boom about 40 feet long and about 12 or 14 inches in diameter. The boom was hinged to the top of the mast at a point on the boom about 13 feet from one end and about 27 feet from the other end. Extending above the boom, at the point where it was attached to the top of the mast, was a small upright timber about five feet long, over the top of which, and connected with the ends of the boom ran a wire cable. This five foot upright timber extending above the top of the mast made the height of the mast, with the added upright, about 27 feet, and perhaps a few inches more. Affixed to the short end of the boom was a system of ropes and pulleys by means of which the short end of the boom was lowered and raised, as required to raise and lower the long end of the boom. To the long end of the boom was attached suitable tackle for lifting hay from the ground and placing it upon the stack. In operation the long end of the boom would often be raised to a greater height than the top of the center mast, when hay was being placed upon a high part of the stack. But with this arrangement of the mechanism we have nothing to do. The haystacker was not in operation at the time of the accident. It was being moved along the highway and the boom was secured in a horizontal position at the top of the mast, which, being about 22 feet in height fixed the height of the horizontal boom at about 22 feet. With the boom in this horizontal position the highest point of the derrick was the top of the upright above the perpendicular mast, which was not to exceed 27 feet and 6 inches from the round.

The general direction of the public highway over which the derrick or haystacker was being moved was east and west. Along and close to the north boundary line of this highway were strung the electric wires of defendant's high-power transmission line. At the point where the accident occurred, the road crosses a bridge over a ditch running diagonally across the road. Approaching this bridge, the roadway passes over to the northerly side of the right of way, the northerly side of the roadway passing under the wires of the defendant's high power transmission line, and the road then turning in a southerly direction rises and passes over the bridge, crossing the ditch. This bridge is approximately about 16 feet wide, and to pass over it safely it was necessary to square the haystacker with the bridge. It was while approaching this bridge that the top of the derrick or haystacker came into contact with the defendant's high-power transmission wires.

The derrick or haystacker was being drawn by two teams of two horses each, all abreast. The plaintiff was driving one of these teams and an employe the other. When the derrick or haystacker had been drawn into position for crossing the bridge, the employe was at the head of the horses, and the plaintiff was on the south side of the derrick. The evidence tended to show that as the derrick or haystacker was being drawn, or was about to be drawn, onto the bridge, there was a near contact, or an actual contact, between the cable passing over the mast of the haystacker or derrick and the defendant's high-power transmission wires, and that the electric current passing down the cable, hanging down from the short end of the boom, struck the plaintiff, and he was severely injured.

The defendant's wires were not insulated, and it was admitted by the defendant that on the date of the accident it transmitted over and along its wires a strong and powerful current of electricity of about 23,000 volts for the purpose of furnishing light and power to a large number of persons, and for other purposes, and that this current of electricity was dangerous to the life of any human being who might come near or in contact with it.

The evidence tended to show that the bridge was built before the defendant's power line was established, and the eastern approach to the bridge was higher than the road either east or west of it. From an engineering standpoint it was not possible to change the bridge over the ditch to any great extent, the ditch being very flat at that point. At a point on the nearest pole to the east the lowest wire of the power line was 30.7 feet from the ground. At the nearest point to the west of the point of the accident the lowest wire was the same distance from the ground; while at the point of the accident the lowest wire was 27 feet and 6 inches from the ground, without any allowance for the sag of the wire at that point; the measurement being taken by triangulation. The sag of the wire would bring the wire down 2 or 3 inches lower, making the distance from the ground near the bridge, to the lowest wire, at the point of the accident, about 27 feet and 3 inches. For a distance of 4 or 5 poles west, and one pole east, the height of the lowest wire from the ground varied from 29 1/2 feet to 31 feet. At no other point was the lowest wire as near the ground as at the point of the accident.

There was evidence tending to show that the standard for poles recognized by engineers and parties in charge of construction of power lines such as that maintained by the defendant, and in a country such as that in which defendant's line is located, is about 40 feet in length; that these poles would be sunk in the ground between 6 and 8 feet, sometimes 5 feet. Three wires are strung on these poles; one on top of the pole and two on the cross-arm 30 to 40 inches below. The top wire is neutral; the bottom wires are the electric power wires. All of these wires are placed on insulators, the top wire on a pin on top of the pole, and the two on the cross-arm on pins from 12 to 14 inches above the cross-arm. This standard of construction carries the lowest transmission wires from 30 to 33 feet from the ground.

The evidence tended to show, further, that in driving west along the roadway, and making the turn to pass over the bridge, it was necessary to pass under the wires of the defendant's transmission line at that point, and that it was impossible to go along the road and over the bridge without going under the wires.

The evidence tended to show, further, that at a point about 300 yards east of the place where the accident occurred the haystacker or derrick had been drawn into the roadway that morning, passing under the wires of the defendant's power line without contact; that at another point about 400 yards west of the place where the accident occurred the haystacker or derrick had passed under the wires of the defendant's power line some time before without contact, and the same thing had occurred at other times and at other places; that plaintiff's haystacker or derrick was of the style in general use in that vicinity; that they were very common, had been seen in that vicinity since 1906, and were transported up and down the highways in moving them about from place to place.

At the close of plaintiff's testimony, the defendant moved for a nonsuit. The motion for a nonsuit was sustained by the court, and the action dismissed, on the following grounds:

(1) Because the evidence failed to show that the defendant company was guilty of any negligence causing the injuries received by the plaintiff.

(2) Because the evidence showed that the plaintiff was guilty of such contributory negligence as precluded his recovery.

Alfred A. Fraser, of Boise, Idaho, and W. P. Guthrie, of Twin Falls, Idaho, for plaintiff in error.

S. H. Hayes and J. F. Nugent, both of Boise, Idaho, for defendant in error.

Before GILBERT, ROSS, and MORROW, Circuit Judges.

MORROW Circuit Judge (after stating the facts as above).

1. The order of the court granting defendant's motion for a nonsuit is assigned as error, on the ground that the court had no power to grant a peremptory nonsuit against the will of the plaintiff. The rule now established in the federal courts is this: If the state law permits a nonsuit where the evidence, with all the inferences to be drawn therefrom, would not sustain a verdict for the plaintiff, the federal court may do likewise, under the provisions of section 914 of the Revised Statutes of the United States. U.S. Comp. St. 1901, p. 684. Central Transp. Co. v. Pullman's Car Co., 139 U.S. 39, 40, 11 Sup.Ct. 478, 35 L.Ed. 55; Meeham v. Valentine, 145 U.S. 618, 12 Sup.Ct. 972, 36 L.Ed. 835; Coughran v. Bigelow, 164 U.S. 308, 17 Sup.Ct. 117, 41 L.Ed. 442; Russo-Japanese Bank v. National Bank of Commerce, 187 F. 80, 86, 109 C.C.A. 398.

Section 4354 of the Revised Codes of Idaho (1908) is as follows:

'An action may be dismissed, or a judgment of nonsuit entered, in the following cases: * * *

'5. By the court, upon motion of the defendant, when, upon the trial, the plaintiff fails to prove a sufficient case for the jury.'

Such a motion admits the existence of every fact in favor of the plaintiff, which the evidence tends to prove, or which could be gathered from any reasonable view of...