Tennessee Elec. Power Co. v. Hanson

• Decision Date: 22 December 1934
• Citation: 79 S.W.2d 818,18 Tenn.App. 542
• Parties: TENNESSEE ELECTRIC POWER CO. v. HANSON.
• Court: Tennessee Court of Appeals

79 S.W.2d 818

18 Tenn.App. 542

TENNESSEE ELECTRIC POWER CO. v. HANSON.

Court of Appeals of Tennessee, Middle Section.

December 22, 1934

Certiorari Denied by Supreme Court March 9, 1935.

Appeal in Error from Circuit Court, Maury County; W. B. Turner Judge.

Action by Sarah B. Hanson, administratrix, against the Tennessee Electric Power Company. From a judgment for plaintiff defendant appeals in error.

Affirmed.

T. Pope Shepherd, of Chattanooga, and Horace Frierson, Jr., of Columbia, for plaintiff in error.

Hugh Lee Webster and Hugh Todd Shelton, both of Columbia, for defendant in error.

DE WITT, Judge.

About 7 a. m. on January 13, 1932, Henry Hanson was killed by a current of electricity which passed through his body from a wire or wires of the Tennessee Electric Power Company, which were attached to poles which had fallen or been blown down along the west side of the Santa Fé Pike. His widow as administratrix brought this action against the company for damages for wrongful death of her husband, alleging that the company was guilty of negligence in failing to maintain properly its said line, in that the poles were rotten causing the line to fall upon the road that the wires were uninsulated, making contact therewith dangerous; that the company failed to cut off the current after notice that the line was down upon the road; and that these negligent omissions of duty were the proximate causes of the death of Henry Hanson.

Under its plea of the general issue the defendant denied that it was guilty of negligence proximately causing the accident and it sought to show that the deceased was guilty of contributory negligence, or at least remote negligence. Upon the trial, the jury rendered a verdict awarding $16,500 as damages, but the trial judge suggested a remittitur of $3,500, which was accepted by the plaintiff; and a judgment for $13,000 was entered. From this judgment the company appealed and assigned errors.

The company concedes negligence in the condition and maintenance of its line, there being substantial evidence of it; but it insists that there is no evidence to sustain the charge of negligence in failure to cut off the current after receipt of information that the poles and wires were down. It concedes, however, that this is of little importance, inasmuch as negligent maintenance is conceded. Then the question is narrowed to that of contributory or even remote negligence of the deceased in driving his car through the narrow space between the poles and wires and the edge of the road with the heavily charged wires in dangerous proximity to the car as it passed along.

At the time of the accident, the Tennessee Electric Power Company was the owner and operator of a hydro-electric plant, including power stations, transmission lines, pole lines, and franchise rights in Maury county, including also an uninsulated transmission line, consisting of wires fastened to poles, carrying 2300 volts of electricity, running from the corporate limits of the city of Columbia out and along the Santa Fé Pike and by the place of the accident, which was about one and one-half miles from the city. This line was formerly a telephone line. In 1928 it was acquired by the Southern Cities Power Company, and some of the old poles were replaced with new ones, but the cedar poles were not replaced. In 1929, it was purchased with other and similar properties by the Tennessee Electric Power Company. No inspection of it was made after that time. The custom of the company was to make no inspection until after the first six or seven years, and then to make annual inspections. These facts appear without dispute.

Henry Hanson was thirty-four years of age at the time of his death. He lived in his home on the Theta Pike a little over a mile from Columbia. He was an expert stonecutter, employed by a marble monument company; but at the time of the accident the plant was closed, and he spent much of that period in hunting and trapping. His father lived on the Santa Fé Pike about half a mile toward Columbia from the place of the accident. On the morning of the accident he arose early and about fifteen minutes before 7 o'clock he left home in his car to go out the Santa Fé Pike to visit some traps which he had placed in the neighborhood of the place of the accident. There is evidence that it was a dark, foggy, misty morning. His father testified that he saw him pass his home at about 7 o'clock. Mr. C. F. Church testified that he resided on the Santa Fé Pike between the scene of the accident and Columbia; that on that morning he left his home a little before sunrise to go out the Santa Fé Pike in his automobile; that he soon came to where the poles and wires were down, stopped his car, and got out after passing around the first pole, and found the dead body of Henry Hanson on the ground on the right-hand side of his automobile going out from Columbia; that the engine of Hanson's car was running and its lights were burning; that on the left hand side of that car one wire was just above the fender and another was between the latch and the top of the car, both wires resting against the car; that this was at a low place in the road where water stood; that the dead body was in a pool of water, with the exception of face, head, and one shoulder. He said that the nearest pole was decayed and broken off at the ground. A number of other persons who came to that place about that time testified that three poles were learning or down; that this middle pole was resting with the cross-arms on the ground; so that the wires which touched Hanson's automobile were three feet or more above the ground. Mr. Church testified that the Hanson car was over to the right-hand side of the road about three feet from the edge of a ditch which was near the fence; that the body was close to the car. On cross-examination he was asked and he answered:

"Q. When you pulled out, did you pull out into the ditch?

"A. Yes. Right into the ditch.

"Q. To the edge of the ditch?

"A. Right against the bank.

"Q. Right into the bank?

"A. Yes, I was hugging the bank.

"Q. You were hugging the bank?

"A. Yes sir.

"Q. And you missed the pole when you did that?

"A. Yes, sir.

"Q. How far had you gone when you passed the second,--did you pass the second pole?

"A. No sir.

"Q. With your car?

"A. No sir.

"Q. But the Hanson car was beyond the second pole?

"A. No sir, this side of the second pole.

"Q. This side of the second pole?

"A. Right at it, he could not get around it without backing up, he was right in it, you might say, he had to back up to get around it, because he had pulled, when he had passed the first pole, from the tracks I saw, he had pulled back into the road.

"Q. Back into the road?

"A. Yes, and had gotten into the wires and had went on down to the second pole in the wires and had gotten down there, and he could not pass the second pole without backing up and going around it, getting in the ditch to go around it.

"Q. Through the water?

"A. Yes sir.

"Q. But, if he had stayed in the ditch and not pulled back in the road between the two poles, he could have passed the whole thing and gone on?

"A. I would judge so, yes. It was a close ride, but he could squeeze by.

"Q. You had noticed tracks where other cars had gone by didn't you?

"A. I never noticed particularly about the tracks, but I understood other cars did go by.

"Q. And he could have gotten by by going out in the ditch?

"Q. How many poles do you say were down, Mr. Church?

"A. Three poles.

"Q. Three poles?

"A. Yes sir.

"Q. The one you went around was down, wasn't it?

"A. Yes sir.

"Q. Was the one towards town from that leaning a little?

"A. Leaning slightly.

"Q. But not down?

"A. That is right.

"Q. Then you came to the down pole, that is the pole was pretty near down on the road?

"A. Yes sir.

"Q. The next was down?

"A. The next one down.

"Q. And the third one down?

"A. The third one down.

"Q. Was it down or just leaning?

"A. Down all the way.

"Q. You think the three poles were down?

"A. Yes sir."

Mr. Church also said that the latch of the door of Hanson's car against the wires was open so that one could possibly stick two fingers in the opening of the door, as if Hanson had attempted to get out on the left-hand side of the car. However, the jury probably inferred, and the inference was most reasonable, that Hanson first tried to open the left-hand door, but when he found it against the wires, a circuit not yet being made, he opened the right-hand door and stepped into the water with his hand on the car, so that a circuit was made, and he fell dead into the water. There is evidence that there was a burn on his right hand and there was a burn on the left-hand side of the car.

On the night before the accident there was a rain and windstorm, a heavy rain and a hard wind, but Mr. Church said that it was not a cyclone or a dangerous storm. It is inferable that the force of this wind broke the poles and threw them nearly across the road.

Dick Frazier, who came to the place from the opposite direction while Mr. Church was there, testified that the right-hand wheels of Hanson's car were six or seven inches deep in the water. He said that he could have driven through that place if Hanson's car had not been in the way.

Other witnesses who came to the place corroborated these witnesses, saying that the poles were rotten, two of them down with the wires; and that the best or even the only way to get around these obstructions was drive into the ditch.

There is evidence that the middle pole, which was a cedar pole and which broke off at the ground from utter decay, had stood there when it was used for a telephone line and was not...