Southern Pine Electric Power Ass'n v. Denson

• Decision Date: 24 March 1952
• Docket Number: No. 38233,38233
• Citation: 214 Miss. 397,57 So.2d 859
• Parties: SOUTHERN PINE ELECTRIC POWER ASS'N v. DENSON.
• Court: Mississippi Supreme Court

Page 859

57 So.2d 859

214 Miss. 397

SOUTHERN PINE ELECTRIC POWER ASS'N v. DENSON.

No. 38233.

Supreme Court of Mississippi.

March 24, 1952.

Butler, Snow & O'Mara, Jackson, for appellant.

McFarland & McFarland and O. M. Oates, all of Bay Springs, Melvin, Melvin & Melvin and James D. Hester, all of Laurel, for appellee.

LEE, Justice.

This suit was brought against Southern Pine Electric Power Association by J. J. Denson, Administrator, to recover damages for the alleged wrongful death of E. J. Stringer. There was a verdict for the plaintiff for $15,000; and from the judgment entered thereon, the Power Association appeals.

While the declaration charged several grounds of negligence, proof was adduced only on the allegations that the Power Association was negligent in erecting and maintaining its power line, uninsulated and too close to the ground, almost directly over the decedent's water well.

E. J. Stringer and wife lived in a rural home in Jasper County. In June 1948 they executed a right-of-way easement over their property to the Power Association for the construction and maintenance of its power line, and they became patrons of the company. The primary line was 25 feet above the ground and carried 7620 volts. It ran across their backyard and lacked only 3 to 6 feet of being directly over their well--a bored well, with a bench 3 to 4 feet wide, 6 feet long and 2 or 2 1/2 feet high, built around it.

On Wednesday, about June 13, 1950, Stringer purchased an electric pump from one McAlpin, who installed it in the well. The next morning, Stringer sent word to McAlpin that the pump was not working, he was out of water, and requesting McAlpin to come and take it out. Needless to say, McAlpin did not remove the pump.

Early the following Sunday morning a neighbor, Melvin Ishee, went to the Stringer home where he found the bodies in the yard, near the well. Mrs. Stringer was not burned badly and could be recognized easily; but Mr. Stringer was burned to a crisp, to such an extent that expert evidence was necessary to make a positive identification.

A coroner's inquest was immediately set up. Dr. W. C. Simmons made a detailed examination of the bodies and of the immediate premises. The body of E. J. Stringer was within 3 or 4 feet of the well. His wife's body was lying 4 or 5 feet on the other side. The well, bench and curbing were burned into the ground. The pump, consisting of zinc pipe about 1 inch in diameter and about 21 feet long, together with the point or strainer of the length of 5 feet had been removed from the well and the bottom part was near the well hole. There were several bright streaks near the top of the pipe. He observed the two power lines, both primary and secondary, almost directly over the well, only 3 to 6 feet off perpendicular from the bench or well hole. He testified that no ordinary fire could have so completely destroyed the bench and curbing or so nearly burned up a human being. He expressed the opinion that, beyond reasonable doubt, Stringer was electrocuted.

Several witnesses observed a spot on the primary wire which appeared to have been punched or melted or burned. One witness said that he was present when employees of the appellant lowered the wire. Referring to the spot, they said, 'that is where it touched'. These witnesses also testified that, at the time, there was no splice in or wrapping of the wire. Later and before and about the time of the trial, a splice or wrapping appeared on the wire at that particular spot. Several witnesses testified that there were streaks or dark marks or wire signs on the pipe near the top as though an electric torch had touched and left them or burned the top of the pipe.

Shelton Thomas, an engineer, testified that construction of power lines should be planned so that power can be used for pumps, and that the location of the line with reference to the well should be taken into consideration.

Rod Holloway, an electrical contractor, was of the opinion that a high voltage line so close to the house did not conform to good construction; that it would not be good construction either to place a well so close to such a line, or to place a line so close to the well; that it was reasonably foreseeable that a patron would use an electric pump in the well; and that standard pipe, with 21 foot joints, would be used.

One witness testified that 65 to 70 percent of patrons put electric pumps in their wells. Another, that 75 percent do so. And still another, that 'most patrons' install them. It was shown that most shallow wells in that area are over 20 feet deep; that standard pipe comes in 21 foot sections, and the points are 5 feet long; that pumps get out of order and have to be repaired; that it is not necessary to obtain the services of experts to pull pipes out of wells, because patrons can do such work themselves; and that, if power lines are over or near wells, when the pipes are pulled out or put in, contact is likely to be made with such lines.

Several witnesses for the Power Association testified that the construction was proper and in accordance with recognized standards, as used by others in that kind of work. They said it was impracticable to insulate the lines, though such could be done at great expense. Insulation is obviated by having the line at sufficient height; and that in their opinion the line was high enough over the well.

There was testimony also that the current could be turned off; and that Stringer's failure to request this constituted negligence. Evidence was also introduced to the effect that the splice or wrapped place in the wire was made when the line was originally installed.

B. J. Morse testified that, when the pump was being installed by McAlpin, assisted by Stringer, it almost came in contact with the power line. He himself stopped the operation and gave directions to avoid contact. However, on cross-examination, the witness admitted that he was not thinking of potential danger therefrom, but of preventing entanglement with the wire and obstructing the installation. Besides he did not even know whether Stringer heard what was said.

Appellant contends here that its motion to exclude and its request for a directed verdict in the court below should have been sustained for two reasons: (1) a judgment may not rest on speculation, surmise or conjecture; and (2) the evidence failed to show that appellant was guilty of any negligence which had a substantial causal connection with the death complained of.

As to the first proposition, appellant suggests that, since there was no eyewitness, the manner in which Stringer met his death is completely unknown. It suggests as possibilities that he may have been withdrawing the pipe from the well, or replacing the pipe in the well, or carrying the pipe and tripping so that it struck the wire, or that he may have been trying to make a connection with the high voltage line and the electric motor.

In 38 Am.Jur., Negligence, par. 333, page 1032, it is said: 'The law does not require every fact and circumstance which make up a case of negligence to be proved by direct and positive evidence or by the testimony of eyewitnesses. Proof of the fact of negligence may rest entirely in circumstances; in other words, circumstantial evidence alone may authorize a finding of negligence. Hence negligence may be inferred from all the facts and attendant circumstances in the case, and where the circumstances are such as to take the case out of the realm of conjecture and within the field of legitimate inference from established facts, a prima facie case is made.' And in par. 334, page 1033, of the same volume, it is said: 'In accord with the rule governing proof of negligence generally, proximate cause need not be established by the testimony of eyewitnesses, nor by direct or positive evidence, but may be proved by circumstantial evidence; it may be determined from the circumstances of the case.' See also Anderson v. Asphalt Distributing Co., Mo.Sup., 55 S.W.2d 688, 86 A.L.R. 1033. See also Palmer v. Clarksdale Hospital, 206 Miss. 680, 40 So.2d 582, where this Court cited with approval 38 Am.Jur., par. 333, supra.

It must be remembered that on Wednesday before his death was discovered on Sunday, Stringer installed a pump in the well. He had trouble with the pump, could get no water, and sent word early Thursday morning to McAlpin and requested him to take the pump out. When the death was discovered, the pump had been taken out. Stringer's remains were lying near the well and pipe. He had been electrocuted. Signs on the wire and pipe indicated contact between them. The power line was 25 feet above the ground. The aggregate length of the pipe and point was 26 feet. When removed on the well bench, it would extend about 28 feet into the air. If the pipe was raised in a perpendicular position from the well, the top part was within six feet of the power line. The marks on the pipe were one to two feet from the top. An ordinary fire, such as the burning of the bench and well curb, could not have burned Stringer to such a marked extent.

From the foregoing facts, the reasonable and compelling conclusion is that Stringer was removing the pump from the well and, in doing so, the pipe made contact with the high voltage wire, and, as a result thereof, he was electrocuted. The legal effect would be the same if any one of appellant's first three suggestions is adopted. As to the fourth, it is unthinkable that he was trying to make a connection with the power line. There was neither proof nor suggestion that a ladder had been used on the ground; and it is unreasonable that Stringer climbed the pipe, and, in such a precarious situation, attempted to make a connection to the wire, 25 feet off of the ground.

The proof was ample to show the manner and cause of death.

As to the second proposition, the question of reasonable foreseeability comes into play. A fair statement of the rule as regards...