Thompson v. Daviess-Martin County REMC, DAVIESS-MARTIN

Docket NºNo. 1-585A134
Citation486 N.E.2d 1102
Case DateDecember 30, 1985
CourtCourt of Appeals of Indiana

Page 1102

486 N.E.2d 1102
John THOMPSON, Appellant (Plaintiff Below),
v.
DAVIESS-MARTIN COUNTY REMC, Herman Lashley, and Lois
Lashley, Appellees (Defendants Below).
No. 1-585A134.
Court of Appeals of Indiana,
First District.
Dec. 30, 1985.

Page 1103

Russell E. Mahoney, Petersburg, for appellant.

David Waller, Fitzpatrick, Chambers, Waller Leonard & Hanson, Washington, Rabb Emison, Emison, Emison, Doolittle & Kolb, Vincennes, for appellees.

ROBERTSON, Judge.

Plaintiff-appellant John Thompson (Thompson) appeals from a judgment entered in favor of defendant-appellee Daviess-Martin County REMC (REMC) and defendants-appellees Herman and Lois Lashley (Lashleys).

We affirm.

Thompson was injured on May 23, 1980, while delivering turkey feed to the Lashleys' farm. Thompson had made deliveries to the Lashleys on other occasions, and he had been warned that a power line passed over the range bin used for feed storage. The high wires were visible to Thompson as he parked the truck next to the range bin. Thompson drove underneath the high wires and then backed up, watching the power line in his rear view mirror. After parking the truck, Thompson extended a boom auger to the top of the range bin and filled the bin with feed.

Thompson then climbed on top of the truck to sweep off excess feed. Thompson noticed the power line when he climbed on top of the truck. He began to sweep, using a broom with a ten foot metal handle. The metal handle came into contact with the power line, and Thompson suffered a severe electrical shock.

The power line was installed in 1973 by REMC. The power line consisted of two

Page 1104

wires, a lower neutral wire and an upper uninsulated wire carrying 7200 volts. The upper wire was required to have a minimum vertical height above ground of twenty feet six inches. The height of the upper wire was measured at eighteen feet three inches.

Thompson brought action against REMC and the Lashleys. He sought recovery on the theories of common law negligence, negligence based upon the utility's violation of a safety regulation, negligence based upon the landowners' breach of contractual duty, and breach of contract. The case was tried to the court without a jury. The trial court found that REMC and the Lashleys were negligent. However, the court denied recovery to Thompson on the grounds that the power line presented an open and obvious risk and that Thompson was contributorily negligent because he failed to take precautions not to come into contact with the line when he knew or should have known it was dangerous.

The issues raised on appeal have been consolidated and restated as follows:

1) Whether the defenses of contributory negligence and incurred risk were unavailable to REMC, because the utility's conduct was wilful and wanton;

2) Whether the court erred by entering its Conclusion of Law No. 22 that Thompson was guilty of negligence which proximately caused his injury.

ISSUE ONE:

According to Thompson, the defenses of incurred risk and contributory negligence could not bar recovery because the actions of REMC constituted wilful and wanton misconduct. Thompson maintains that he preserved this error for review by presenting it in his motion to correct errors:

3. The judgment of the Court is contrary to law, because where an electric public utility owns and operates an electric power line,

A. Which is lower than the minimum height requirement of the National Electrical Safety Code;

B. Which is not insulated as required by law;

C. Which has a particular segment of the public regularly exposed to the line, with the actual knowledge of the public utility;

D. Which injures a...

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10 practice notes
  • Associates Inv. Co. v. Claeys, No. 71A04-8804-CV-131
    • United States
    • Indiana Court of Appeals of Indiana
    • February 8, 1989
    ...trans. denied; Koop v. Bailey (1986), Ind.App., 502 N.E.2d 116, 118, n. 3; Thompson v. Daviess-Martin County REMC (1985), Ind.App., 486 N.E.2d 1102, 1104. Accord, Singleton v. Wulff (1976), 428 U.S. 106, 120, 98 S.Ct. 2868, 2877, 48 L.Ed.2d 826. However, a court without subject matter juris......
  • W & W Equipment Co., Inc. v. Mink, No. 49A02-8902-CV-55
    • United States
    • Indiana Court of Appeals of Indiana
    • March 18, 1991
    ...an issue on appeal that was not raised in the trial court waives that issue. Thompson v. Daviess-Martin County REMC (1985), Ind.App., 486 N.E.2d 1102. Even absent waiver, we would not find that Mink had unclean hands. Winter argues Mink's hands were unclean because he voted to terminate Win......
  • Thompson v. Public Service Co. of Indiana, Inc., No. 1-1285A312
    • United States
    • Indiana Court of Appeals of Indiana
    • November 12, 1986
    ...to the trial court or in the motion to correct errors, so it is waived. Thompson v. Daviess-Martin County REMC, (1985) Ind.App., 486 N.E.2d 1102, 1104-05. Thompson in the instant case argues that he preserved the issue in the trial court by alleging conduct which would, per force, constitut......
  • Stewart v. State, No. 49A02-8807-PC-261
    • United States
    • Indiana Court of Appeals of Indiana
    • January 16, 1990
    ...trial in order to give the trial court an opportunity to correct them. Thompson v. Daviess-Martin County REMC (1985) 1st Dist.Ind.App., 486 N.E.2d 1102. 2 At the hearing on the Motion to Correct Errors, held March 25, 1987, Stewart's counsel formally objected to the presentation of laches e......
  • Request a trial to view additional results
10 cases
  • Associates Inv. Co. v. Claeys, No. 71A04-8804-CV-131
    • United States
    • Indiana Court of Appeals of Indiana
    • February 8, 1989
    ...trans. denied; Koop v. Bailey (1986), Ind.App., 502 N.E.2d 116, 118, n. 3; Thompson v. Daviess-Martin County REMC (1985), Ind.App., 486 N.E.2d 1102, 1104. Accord, Singleton v. Wulff (1976), 428 U.S. 106, 120, 98 S.Ct. 2868, 2877, 48 L.Ed.2d 826. However, a court without subject matter juris......
  • W & W Equipment Co., Inc. v. Mink, No. 49A02-8902-CV-55
    • United States
    • Indiana Court of Appeals of Indiana
    • March 18, 1991
    ...an issue on appeal that was not raised in the trial court waives that issue. Thompson v. Daviess-Martin County REMC (1985), Ind.App., 486 N.E.2d 1102. Even absent waiver, we would not find that Mink had unclean hands. Winter argues Mink's hands were unclean because he voted to terminate Win......
  • Thompson v. Public Service Co. of Indiana, Inc., No. 1-1285A312
    • United States
    • Indiana Court of Appeals of Indiana
    • November 12, 1986
    ...to the trial court or in the motion to correct errors, so it is waived. Thompson v. Daviess-Martin County REMC, (1985) Ind.App., 486 N.E.2d 1102, 1104-05. Thompson in the instant case argues that he preserved the issue in the trial court by alleging conduct which would, per force, constitut......
  • Stewart v. State, No. 49A02-8807-PC-261
    • United States
    • Indiana Court of Appeals of Indiana
    • January 16, 1990
    ...trial in order to give the trial court an opportunity to correct them. Thompson v. Daviess-Martin County REMC (1985) 1st Dist.Ind.App., 486 N.E.2d 1102. 2 At the hearing on the Motion to Correct Errors, held March 25, 1987, Stewart's counsel formally objected to the presentation of laches e......
  • Request a trial to view additional results

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