Southern Utilities Co. v. Murdock

• Decision Date: 14 May 1930
• Citation: 99 Fla. 1086,128 So. 430
• Parties: SOUTHERN UTILITIES CO. v. MURDOCK.
• Court: Florida Supreme Court

128 So. 430

99 Fla. 1086

SOUTHERN UTILITIES CO. v. MURDOCK.

Florida Supreme Court

May 14, 1930

Error to Circuit Court, Manatee County; W. T. Harrison, Judge.

Action by William F. Murdock against the Southern Utilities Company. Judgment for plaintiff, and defendant brings error.

Affirmed.

COUNSEL

Jackson, Dupree & Cone, of Tampa, for plaintiff in error.

Mabry Reaves & Carlton, of Tampa, for defendant in error.

OPINION

ELLIS J.

William F. Murdock lived with his wife in Manatee, Fla. The house which they occupied was supplied with electrical current for domestic use by the Southern Utilities Company, which operated an electric power plant in Bradenton, Fla., and supplied electric current for lights and power to neighboring towns including the town of Manatee.

About the 1st of December, 1925, Murdock left his house early in the morning to go to his place of business. He passed through the front door of his house to the porch, and thence to the walkway leading to the street about thirty or forty feet distant, but, instead of going by the walkway directly to the street, he decided, as was his custom, to go across the yard diagnoally to the street to save, as he said, 'a few steps.' He would have thus saved in distance the difference between the length of the hypotenuse of a right angle triangle and the distance of the other two sides. He had taken a few steps only in the yard when he came in contact with a fallen electric wire of the utilities company. The wire was charged with electricity, and lay upon the ground. Murdock was severely burned, and was very soon afterward discovered in an unconscious condition lying prone upon the ground, face up, right-hand palm upward on his chest, and the wire lying across his body upon his hand, the broken ends of the wire emitting sparks about eighteen inches from his body.

He brought an action against the utilities company for damages for personal injuries alleged to be due to the negligence of the company. The amended declaration was filed in November, 1927, nearly two years after the accident. It contains three counts, and is in a form, so far as the second and third counts are involved, which has on more than one occasion been criticized by this court. See Florida Cent. & P. R. Co. v. Foxworth, 41 Fla. 1, 25 So. 338, 79 Am. St. Rep. 149; Nelson v. Hall, 66 Fla. 35, 63 So. 156.

The first court alleged that the negligence of the defendant consisted of its having 'negligently erected and maintained its wires' so that one of them fell in the yard of the plaintiff in close proximity to his house. The second count alleged that the company's negligence consisted in its neglect 'to keep its said wire so insulated as to shield the plaintiff from injury'; the third, that the defendant 'suffered the said wire to carry a high and dangerous voltage of electric current.'

There was no demurrer to either count of the declaration, but three pleas were interposed to each count. The first was a plea of not guilty; the second that the fallen wire was the result of 'an Act of God,' in that during the morning of December 1, 1925, and the preceding night a severe wind storm prevailed in Manatee county, the wind reaching a high and unusual velocity, which placed an unusual and great strain upon the defendant's wire, causing it to break loose at a point where it joined the house wiring, and such condition could not have been foreseen and guarded against by the defendant. The third and fourth pleas aver that the plaintiff was guilty of a contributory negligence, in that, although the danger was apparent to him, he negligently picked up the fallen wire, and thus by his own negligent act brought himself into contact with the fallen wire and the electrical current which it carried.

Later the second plea to the second and third counts was amended so as to aver that a 'primary wire carrying 2,300 volts had broken and fallen across a secondary or low voltage wire,' which caused the 'heavy current from the high tension wire to be transmitted to the wire which fell.'

The amendments appeared to be clear enough to the parties so they went to trial on the issues joined. The jury returned a verdict of $5,000 damages for the plaintiff, and judgment was entered for that amount in his favor.

The utilities company seeks a reversal of the judgment on writ of error.

A motion for a new trial was denied.

At the conclusion of the plaintiff's evidence, the defendant moved for a directed verdict in its behalf, and the motion was renewed at the conclusion of all the testimony. These motions were denied, and are assigned as errors.

The case presents merely questions of fact in the main and one question upon the admissibility of certain proposed evidence. The defendant offered the United States weather report at Tampa for December 1, 1925. The plaintiff objected, and the objection was sustained.

There was no error in that ruling because it appears that neither the record offered showed the velocity of the wind at Manatee nor could the custodian...