Tombigbee Electric Power Ass'n v. Gandy

• Decision Date: 02 February 1953
• Docket Number: No. 38492,38492
• Citation: 62 So.2d 567,216 Miss. 444
• Parties: TOMBIGBEE ELECTRIC POWER ASS'N v. GANDY.
• Court: Mississippi Supreme Court

Page 567

62 So.2d 567

216 Miss. 444

TOMBIGBEE ELECTRIC POWER ASS'N v. GANDY.

No. 38492.

Supreme Court of Mississippi.

Feb. 2, 1953.

W. C. Sweat, Sr., W. C. Sweat, Jr., Corinth, Jas. A. Finley, Tupelo, for appellant.

Cunningham & Cunningham, Booneville, for appellee.

HALL, Justice.

Appellee owned a farm and store at Plantersville, Mississippi, and in February 1947 obtained electric service from appellant for his store. Appellant owned and operated a main line and from this main line it ran a service line across appellee's land to his store. This service line was on poles which extended twenty-nine feet above the ground. It first consisted of two wires, one of which was attached to the poles six inches from the top and the other was attached to the poles eighteen inches below the top wire and carries 110 volts of electricity. In April 1947 a third wire, carrying 110 volts, was attached to the poles at a point eighteen inches below the second wire, and these wires all led to appellee's store. All these wires were new when installed and were covered with standard insulation, and there is no complaint as to the method and manner of installation. On June 4, 1947, appellee leased a part of his land to Southland Oils for the purpose of erecting thereon bulk storage facilities for the operation of a bulk gasoline and petroleum products business, and on the same date Southland Oils leased the same property back to appellee under an agreement whereby Southland Oils obligated itself, within a period of four months, to establish and erect a bulk oil storage plant thereon for the storing of regular gasoline, Ethyl gasoline, tractor fuel and kerosene, together with a warehouse for the storage of lubricating oils in barrels and cases and for storage of greases in packages and drums, and for storage of tires, batteries and accessories, and, in short, it was agreed that appellee would operate the bulk station for the sale of said products at whole-sale.

Pursuant to these agreements Southland Oils entered upon appellee's land and installed in facilities mentioned. They were placed exactly where appellee directed, and one of the gasoline storage tanks was placed directly underneath the service wires which ran to appellee's store. On May 1, 1948, appellee purchased all of said storage facilities from Southland Oils and continued to operate the bulk station plant until the same, together with the store and stock of merchandise, was destroyed by fire and explosion on October 6, 1948.

On June 28, 1951, appellee brought suit for the recovery of damages for his said loss, alleging that the storage tank was erected in close and dangerous proximity to the electric service wires, that appellant knew of the dangerous situation, and that it was guilty of negligence proximately contributing to the loss by continuing to pass its current of electricity through the said wires to his store building. Upon a trial of the cause thus presented appellee recovered a judgment, upon a verdict of a jury, in the amount of $17,500 from which this appeal is prosecuted. Numerous errors are assigned but in view of the conclusion which we have reached it is necessary that we consider only that one which is directed at the action of the trial court in refusing a peremptory instruction for appellant.

The evidence for appellee is to the effect that on the storage tank underneath the wires there was a vent pipe which turned downward and that the lower wire was, according to two witnesses from three to five inches therefrom, and according to another witness from eight to ten inches therefrom. The evidence shows without dispute that the wires were new when installed and were properly insulated and that this insulation would ordinarily be effective for a period of from ten to fifteen years. The evidence further shows that no spark can emanate from any of the wires so as to ignite the gasoline vapors from the tank or vent pipe unless the insulation is removed from the wire and unless it comes in contact either with another wire from which the insulation is removed or with the vent pipe or metal tank. One of appellee's employees, who went daily upon the tanks to measure by gauge the amount of gasoline therein, testified in his behalf and frankly stated that he had never noticed anything wrong with the wires. There is not one word of evidence in the record showing that the insulation had been removed from any of the wires nor that any of the wires had ever come in contact with each other or with the tank or vent pipe or any other object. Appellee bases his right to recover upon the theory that the wire might have come in contact with the tank or pipe and that by swaying in the wind the insulation might have been thereby rubbed off and that a spark might have been caused by such contact and might have ignited the gasoline vapor coming from the vent pipe, and might have thereby caused an explosion with the resulting fire. There is no proof whatever of the happening of any of said possibilities. There is proof in the record that gasoline fumes might cause the insulation to deteriorate, but there is no testimony that such a thing did in fact occur.

As against the mentioned possibilities appellant produced the testimony of Mr. R. H. Park who lived about one-tenth of a mile from the storage tanks and of his son who lived about one thousand feet from the tanks. Mr. Park testified that he had not retired for the night when he observed a fire on the ground in front of the tanks; there had been no explosion at that time; he went to the home of his son and awakened him and the son arose and also observed the fire on the ground; the son dressed and the two of them approached the fire but, sensing the likelihood of an explosion, they were afraid to go near the fire and stopped at a barn. When they reached the barn the fire was then burning the wooden platform about the tanks, and subsequent to that the explosion occurred. The son, Bill Park, testified to the same effect, and none of this testimony is disputed in any particular, nor was either of these witnesses impeached in any manner. The first that any of appellee's witnesses knew of the fire was when the explosion occurred; they knew nothing as to what occurred before the explosion.

Appellee introduced in evidence the National Electric Code published by the National Board of Fire Underwriters wherein it is provided that where service lines do not carry more than 300 volts of electricity there should be a clearance of not less than three feet between them and any roof, and we may assume for the purposes of this opinion that it was dangerous for appellant to pass electricity through its wires under the conditions above mentioned and that it was negligent in so doing even though we have repeatedly held that danger alone does not constitute negligence. Campbell v. Willard, 205 Miss. 783, 39 So.2d 483. But even where negligence is shown that fact alone affords no basis for the recovery of damages unless it further appears from direct evidence or reasonable inference that such negligence proximately contributed to the damage. And when appellee must resort to inference, as he does in this case, we are confronted with the rule adopted by this Court that inferences may not be pyramided beyond the bounds of legitimate conclusion in showing that negligence was a factor proximately contributing to the damage. Here we are asked to infer that in some manner, either by contact with gasoline vapors or by rubbing against the tank or vent pipe, the insulation on the wire deteriorated to such extent as to expose the wire, notwithstanding the fact that there is not one word of testimony that either of such conditions existed. Then we are asked to infer that the wire thus exposed came in contact either with another wire which was likewise exposed or with the tank or vent pipe, when there is no evidence to support...