Toney v. Interstate Power Co.

• Decision Date: 23 June 1917
• Docket Number: No. 29917.,29917.
• Citation: 163 N.W. 394,180 Iowa 1362
• Parties: TONEY v. INTERSTATE POWER CO.
• Court: Iowa Supreme Court

180 Iowa 1362

163 N.W. 394

TONEY

v.INTERSTATE POWER CO.^a1

No. 29917.

Supreme Court of Iowa.

June 23, 1917.

Appeal from District Court, Allamakee County; W. J. Springer, Judge.

Action at law to recover damages for personal injury. There was a trial to a jury and verdict and judgment for plaintiff. Defendant appeals. Affirmed.D. J. Murphy, of Waukon, and Dawley, Jordan & Dawley, of Cedar Rapids, for appellant.

H. E. Taylor and William S. Hart, both of Waukon, for appellee.

WEAVER, J.

The Standard Telephone Company constructed and maintained a rural telephone line upon the south side of a public highway extending east and west in Allamakee county. From its main line it extended service lines to the right and left wherever required for the convenience of its patrons. At a certain point on the main line a service line was carried across the road northward and across an adjacent field to the home of one Sheetz. The first pole on the service line is 145 feet from the pole on the main line where the connection is made. Some years after the erection of the telephone line, the defendant constructed along the north side of the same highway a system of lines for the transmission of electric power. The wires transmitting the power current are carried on poles of greater height than those used by the telephone company and across the course of the Sheetz service line. Whether at this point of crossing the power lines were within the limits of the highway is a matter of dispute between counsel in argument, but under the record as made by the defendant, and to which we shall refer later, defendant cannot now be heard to question the location or to assert any defense based upon the claim that its lines were outside of the limits of the highway. Moreover, while the descriptive terms employed by some of the witnesses are quite elastic and could well be used to describe either a location inside the lines of the highway or immediately outside and parallel thereto, yet we think the record as a whole permits no other conclusion than that the power line at this point was within the highway limits, though near to the boundary. We are further of the opinion, however, that the question is not a controlling one, as will be more fully developed in the course of this opinion. The power company's poles carried three transmission wires, and at the point in question the lowest of these wires was strung 30 1/2 feet above the surface of the ground and 7 1/2 feet above the telephone company's wire; 2 1/2 feet above the last-mentioned wire and 5 feet below the transmission wires the defendant company carried upon its own poles two private telephone wires.

The foregoing sufficiently describes the place where plaintiff claims to have been injured. On the date in question, September 2, 1912, and for a considerable period prior thereto, plaintiff was in the employ of the Standard Telephone Company. His duties were those of a lineman charged with the business of keeping the line in order. Complaint having been made of some defect in the line, plaintiff was sent out to ascertain and remedy it. The evidence offered by him tends to show that on arriving at the place where the Sheetz service line crosses the traveled path of the highway, plaintiff discovered that this wire had become slack and was hanging so low as to create danger of interference with the public use of the highway, and he undertook to remedy this condition by taking up the slack. To accomplish this, he climbed the telephone pole at the place of connection and made use of an instrument, known as a “come-along,” devised for that purpose. This device is in the form of a small block and tackle with clamps at either end. Having climbed to the bracket and clamped one end of the come-along at the pole, plaintiff reached out as far as he could along the wire and there attached the other clamp. The slack being pulled in, he cut out a section of wire leaving enough with which to reconnect the line at the insulator on the bracket. Then, making use of a connector, a pincher-like tool made for that purpose, he clamped it to the end of the wire and sought to pull it in sufficiently to attach or fasten it to the insulator. He had brought it nearly to place, and was about to make the twist necessary to hold it there, when the wire with the connector attached slipped from his grasp and naturally recoiled or flew back in the direction of the strain from the other pole. In doing this work, plaintiff faced the south and away from defendant's power line and away from the direction in which the wire had recoiled. Descending from the pole, he went in that direction to or near the first pole on the service line for the purpose of regaining the wire. On reaching it and attempting to take it in his hand, he received an electric shock rendering him unconscious and from which he alleges he has sustained great injury. On the arrival of assistance, it was discovered that by reason of the force of the recoil when plaintiff lost control of the wire, or from other cause, the loosened wire had been thrown over the defendant's transmission line from which the slack descended to the ground, thus short-circuiting the power current of over 6,000 volts. Plaintiff testifies that he did not see or know of the fact that the telephone wire had been thrown over the power lines, and that on reaching the ground he followed the usual course of workmen in such cases by proceeding at once in the direction of the next pole to regain the wire which had escaped him, having no knowledge or reason to apprehend that such wire had become charged with a dangerous current of electricity. In this manner, as he avers, he was brought into contact with the overcharged wire and received great injury without contributory negligence on his part.

Plaintiff brings this action to recover damages for the injury so sustained, alleging that the same was the proximate result of the defendant's negligence as follows: (1) Failure of the defendant to insulate its power wires or make other provisions to guard the same and prevent contact therewith; (2) failure to provide proper and sufficient safety devices or equipment to obviate or lessen the dangers arising from contact or interference with its wires; and (3) failure to construct its lines according to the requirements of law. He also makes the general allegation that the servants and employés of the defendant were grossly and recklessly negligent in the maintenance and operation of its power lines. It may also here be said that the petition describes the telephone line and the power line as being located along the public highway, while the answer as finally amended denied that the power line was within the highway limits.

On trial to a jury, a verdict was returned for the plaintiff for damages in the sum of $8,500, and from the judgment entered thereon this appeal has been taken by the defendant.

Without attempting to mention seriatim the numerous assignments of error, we will consider, so far as appears necessary, those propositions which appellant has chosen to urge in its argument.

I. It is said, and numerous precedents are called to our attention as supporting the contention, that there is no evidence in the record to sustain a finding that defendant was negligent as charged.

[1] Counsel premise their discussion with the claim that the duty of the defendant to guard or protect its wires carrying high tension currents of electricity against exposure to human contact exists only where the location of the wires is such as to suggest the likelihood or probability of injury to some one in the absence of adequate protection. In other words, if the injury complained of from such source could not reasonably have been anticipated by the party charged with negligence in failing to protect, then there is no liability. With this alleged rule as a foundation, it is next argued that the trial court should have held as a matter of law that defendant was not bound to anticipate the occurrence of an injury such as plaintiff claims to have sustained, and that the charge of negligence fails for want of support in the evidence. We shall not here attempt to discuss or define the limits of the rule of “reasonable anticipation” as above set forth, except to say that some courts have carried it to an extreme to which this court has never committed itself. We have recognized such doctrine as being applicable in cases involving breach of contract obligations and contract rights, but have distinctly refused to do so where damages demanded for a tort--and negligence is a tort. See Mentzer v. Telegraph Co., 93 Iowa, 760, 62 N. W. 1, 28 L. R. A. 72, 57 Am. St. Rep. 294;Black v. Railroad Co., 122 Iowa, 36, 96 N. W. 984.

Again, the application of the rule even in courts giving it effect in negligence cases is often very materially affected by the fact whether the person charging negligence is a trespasser, or mere licensee, or is injured in the course of lawful employment or in a place where he has a unquestionable right to be. It is also a very material inquiry in such cases whether the duty with neglect of which a defendant is charged is one of common-law obligation only, or is one of positive statutory requirement. The statutes, now so common, though of comparatively recent enactment providing in specific terms for the manner of guarding machinery and other dangerous instrumentalities in order to avoid or minimize peril therefrom to all persons exposed to contact therewith, doubtless had their origin in the legislative desire not only to save life and limb but to put an end to much of the haggling and hair splitting, otherwise quite sure to arise in nearly every case, as to whether the injury complained of is one which the defendant should have anticipated. But passing at present the question of statutory obligation, and assuming for the purposes of this case the legal rule to be as counsel state it, we are...