Smith v. Appalachian Electric Power Co.

• Decision Date: 08 January 1935
• Docket Number: No. 3734.,3734.
• Citation: 74 F.2d 647
• Parties: SMITH v. APPALACHIAN ELECTRIC POWER CO.
• Court: U.S. Court of Appeals — Fourth Circuit

74 F.2d 647 (1935)

SMITH v. APPALACHIAN ELECTRIC POWER CO.

No. 3734.

Circuit Court of Appeals, Fourth Circuit.

January 8, 1935.

George Poffenbarger, of Charleston, W. Va. (A. A. Lilly, L. F. Poffenbarger, and Poffenbarger & Poffenbarger, all of Charleston, W. Va., on the brief), for appellant.

Fred O. Blue, of Charleston, W. Va. (Charles M. Love, J. E. Campbell, and Blue, Dayton & Campbell, all of Charleston, W. Va., on the brief), for appellee.

Before PARKER, NORTHCOTT, and SOPER, Circuit Judges.

SOPER, Circuit Judge.

Paul A. Smith, herein referred to as plaintiff, was severely burned by indirect contact with a high-voltage electric wire owned and operated by the Appalachian Electric Power Company, and brought suit against the company, herein referred to as defendant, to recover damages in the amount of $150,000. The suit, brought originally in the circuit court of Kanawha county, W. Va., was removed to the District Court because of diversity of citizenship and was there tried. At the conclusion of all the evidence, the District Judge directed a verdict in the defendant's favor upon the ground that no actionable negligence had been proved, and that the injury was attributable to negligence on the part of the plaintiff. The serious question here presented is whether under the evidence, which was practically undisputed, the case was properly withdrawn from the jury.

The accident occurred on the 4-H Fairgrounds in Kanawha county, W. Va., on September 21, 1933, the day after the annual fair had closed. One Latlip operated at the fair two Ferris wheels of which plaintiff was foreman, and it was in dismantling one of these wheels that he was injured. The wheel had been erected by plaintiff, under the direction of one McCoy, Latlip's superintendent, at a point extremely close to a pole of the defendant, carrying two electric wires which supplied the fairgrounds with light and power. The wire on the side near the Ferris wheel carried 2,300 volts. A wire connecting this main wire with a transformer on the pole ran down from the upper cross-arm of the pole to another cross-arm about 5 feet below; and at the time of the accident about 18 inches of this vertical wire, immediately above the lower cross-arm, was covered only by ordinary weather insulation, insufficient to prevent transmission of current to grounded conductors coming into contact with it. The Ferris wheel, which was 40 feet high and about 11 feet higher than the pole, stood at right angles to the crossarms, with its axle about 13 feet to one side of the pole, and was so placed that one side of it was less than 24 inches from the unprotected wire above mentioned.

The Ferris wheel was operated by means of an endless steel cable, extending around the circumference of the wheel on grooved wooden shoes or rims, fastened at the end of each spoke, on the side next to the pole and wire. At the time of the accident, plaintiff and two other men were engaged in removing this cable from the wheel. In the accustomed way, they detached it from a bull wheel driven by a gasoline engine, thus getting some slack; and, while one of the men turned the Ferris wheel slowly around, plaintiff and another stood at each end of the wheel, and on the ascending end directed the cable out of the wooden rims and to the side, so that, after the wheel had made about half a revolution, the cable, then remaining in the rims at only a few points, would drop off. The cable fell off as expected, but, because of the small space between the wheel and the cross-arms of the pole, it became lodged on the lower cross-arm, in contact with the unprotected wire at that point. There were immediate flashes of electricity, and plaintiff, who was holding the cable in his hand and passing the slack on to the other man, was at once stunned. He fell and lay prone for some minutes with the cable across his body, and his clothing caught fire. There was no means of switching off the current in the immediate vicinity, and plaintiff remained in contact with the cable until a bystander knocked it away with a pole.

The position taken by the defendant is, in brief, that the 2,300-volt wire was entirely safe, though protected only by ordinary weather insulation, when it was originally installed; that the dangerous situation, if any, was caused wholly by the subsequent erection of the Ferris wheel near the wire; and that defendant was under no duty to remedy that situation, caused by the plaintiff himself or his employer. A number of circumstances bearing upon the issue of negligence may now be reviewed in the light of this contention.

The Ferris wheels had been set up in the same location for at least four years prior to 1933, but, in previous years, the wire running to the same pole had carried only 110 or 220 volts. The lighting had been unsatisfactory during this period, and, on complaint of the fair association, higher voltage was put in at various points. The new wire on the pole where the accident occurred was installed on the same day when the Ferris wheel arrived on the grounds. The other Ferris wheel which has been referred to was then being erected at a distance of about 25 feet from the pole. According to evidence on behalf of the plaintiff, part of the wheel here involved was brought to the fairgrounds, and the base of it was laid out on the intended location, at a time when some of the defendant's employees were still at the pole, completing work on the transformer. And the men in charge of installing the new wire concededly became aware of the danger within a day or so after the Ferris wheel was erected. At this time neither the wire coming on to the pole, nor the vertical wire between the cross-arms, was protected by more than weather insulation, and it would have been possible for passengers on the wheel to reach out and touch either of the wires with their hands. When they saw this perilous situation, the defendant's employees told McCoy, the superintendent, that the wire was dangerous and, according to their evidence, instructed him to move the wheel farther away from the pole. McCoy refused, either because it was too much trouble or because, as he testified, there was no space available. Defendant's employees then proceeded to cover most of the wire within reach of passengers with heavy rubber hose. They put on all the hose that they had, and informed McCoy that it was then safe to operate the wheel, having in mind the safety of passengers. But the 18 inches of wire above the lower cross-arm was not covered, as has been indicated, and there was evidence that passengers could have reached it with their hands in passing by.

Electrical engineers, who qualified as experts, testified that in their opinion the exposed portion of the wire was unsafe for persons working on the wheel. Weather insulation, which is a covering of triple braided cotton treated with asphaltum, is ordinarily used and is safe for high-voltage wires that are placed out of reach; but it is unsafe when there is danger of contact. Defendant's men clearly recognized that fact, but they apparently gave no thought except to the safety of passengers riding on the wheel. It would have been possible at small cost either to change the wires so that the neutral wire would be on the side near the Ferris wheel and the primary wire on the other, or to have boxed the primary wire between the cross-arms with boards; but, in any event, sufficient protection would have been afforded had all dangerous portions of the wire been covered with the rubber hose. And, even in absence of such protection, the danger to persons working on the wheel would have been materially lessened had a sign been posted to warn them of the voltage carried by the wire; but that precaution was never taken.

Defendant, as has been stated, relies upon the fact that the maintenance of wires without insulation is customary and proper when such wires are placed on high poles, out of reach so far as ordinary human activities are concerned; and it is contended that no duty devolved upon defendant to make changes for the protection of persons voluntarily placing themselves in a position of danger by the erection of temporary structures nearby. In support of this position, the case of Thomas v. Wisconsin Power & Light Co., 213 Wis. 646, 252 N. W. 192, is cited, where it was held that the company owed no duty to deaden its line to guard against the obvious hazard of moving a house in close proximity to the line, and also Buell v. Utica Gas & Electric Co., 259 N. Y. 443, 182 N. E. 77, where it was held that...