Trimyer v. Norfolk Tallow Co.

• Decision Date: 05 September 1951
• Docket Number: No. 3809,PAUL-MERCURY,3809
• Citation: 192 Va. 776,66 S.E.2d 441
• Parties: JULIAN E. TRIMYER AND SAINTINDEMNITY COMPANY V. NORFOLK TALLOW COMPANY, INC., AND VIRGINIA ELECTRIC AND POWER CO., A CORPORATION. Record
• Court: Virginia Supreme Court

Page 441

66 S.E.2d 441

192 Va. 776

JULIAN E. TRIMYER AND SAINT PAUL-MERCURY INDEMNITY COMPANY V. NORFOLK TALLOW COMPANY, INC., AND VIRGINIA ELECTRIC AND POWER CO., A CORPORATION.

Record No. 3809.

Supreme Court of Appeals of Virginia

September 5, 1951.

White, Ryan & Holland, for the plaintiffs in error.

Breeden & Hoffman and Nusbaum & Underwood, for Norfolk Tallow Company, Inc., defendant in error.

T. Justin Moore, Robt. B. Tunstall and Leigh D. Williams, for Virginia Electric and Power Company, defendant in error.

JUDGE: BUCHANAN

BUCHANAN, J., delivered the opinion of the court.

Trimyer, the plaintiff below, brought this action against the Tallow Company and the Power Company for damages for the serious and permanent injuries sustained by him from a current of electricity transmitted to him from a high tension line through a crane that he was operating. The trial court struck out his evidence on the ground that it failed to establish negligence on the part of either defendant; and, assuming that it did, that the plaintiff was guilty of contributory negligence. The plaintiff contends here that the court committed error in this ruling. The Indemnity Company was made a party plaintiff as the compensation insurance carrier of Trimyer's employer.

The negligence alleged against the Tallow Company was its failure to warn plaintiff of the danger, and that alleged against the Power Company was its failure to insulate the wires.

The electric line was owned, operated and controlled by the Power Company, having been erected by it in 1932 on a right of way granted by the Tallow Company. It consisted of three wires, carrying 11,000 volts, the maximum voltage of any one wire to ground being 6,600 volts. The wires were 34 feet, 10 inches above the ground and attached to porcelain insulators on crossarms affixed to the poles. They were otherwise uninsulated.

Trimyer, the plaintiff, was an employee of Layne Atlantic Company, which engaged in the business of sinking and servicing water wells. In 1945 that company installed a water well for the Tallow Company at a site on the latter's property selected by Layne Atlantic. Over this well was built a well house 21 feet, 4 inches long, 9 feet, 5 inches wide and 9 feet, 6 inches high. Its long axis ran approximately north and south and parallel to the high tension wires. At its south end was installed a cylindrical water tank about 16 feet long, the top of which was lower than the top of the building. To supply power to the well pump, the Tallow Company ran a 220-volt line from its plant to the well house, the wires coming in about parallel to the west side of the building and entering just under its roof from a pole located about seven feet from the west wall. On the north side of the well house was a telephone cable passing 24 feet from the northeast corner and 20 feet from the northwest corner. On the east side was the high tension line, the nearest wire of which, if dropped straight to the ground, would be nearly seven feet from the east wall.

On the day of the accident the well failed to function and the Tallow Company called Layne Atlantic to make the necessary repairs. That company sent its crew and equipment to do the work. The crew consisted of Trimyer, as foreman, and two helpers, Spencer and Wood. The equipment consisted of a crane mounted on a truck and made of two steel pipes put together in the fashion of the letter 'A', fastened at their base to the rear of the truck. Supporting braces were attached to these pipes, by means of which the crane when lifted could be made stationary. The lower ends of these braces moved on runners on the chassis of the truck. At times they stalled and had to be released by one of the crew. This crane was used to lift the pump out of the well when necessary in order to repair it. When fully erected the crane was 35 feet from its tip to the ground. It was raised or lowered by means of a winch operated by power supplied by the motor of the truck.

On reaching the well, Trimyer decided it would be necessary to lift the pump out of the well, which was to be done by letting the cable from the crane down through a small door made in the roof of the well house when it was built. He selected the northeast corner of the well house as the best location for the crane, although that corner was nearer the high tension wires than the northwest corner. He ruled out the south and west sides of the building because of the obstructions referred to, the east side because of the high tension wires, and the north side because the winch operator would not be able to see his signals from inside the well house.

When the operation began Spencer, one of the helpers, was in the cab operating the winch. Wood, the other helper, was getting the tools ready. Trimyer was outside the truck giving directions to Spencer, who watched Trimyer's up and down signals through the rear view mirror of the cab. Trimyer said, 'That was my job outside: To watch. ' He testified that when the crane was raised to approximately three-fourths of its height, he gave Spencer a stop signal so he could loosen the braces on the crane. As he reached out for that purpose, but before he touched the crane, there was a blinding flash and he remembered nothing more.

He said that he last looked at the crane at the moment he gave the stop signal, and at that time its distance from the high tension wires was 'approximately two or three feet.' Right after making that answer he said that just before he was injured the distance was probably 1 1/2 or 2 feet, he didn't know. Later he said the closest the crane came to the wires was about three feet. He said that from the time he looked at the crane until he was injured, neither the truck nor the crane moved. He insisted that the crane did not touch the wires and that he did not touch the crane.

Spencer was also injured. His testimony was that when the flash came the crane was just about where it was supposed to be and could not have been raised much higher; that at that time the gear operating the winch was in neutral and did not move. He did not see Trimyer when he was injured; he only saw his hand go out and he remembered nothing more.

Another witness, who was 150 to 250 feet away, said that right after the accident he saw the crane something like six inches from the wire.

This was all the evidence as to what happened. Its implication is that electricity from the high tension line was transmitted to the plaintiff over an arc between the wire and the crane and another between the crane and plaintiff's hand. Whether it happened just that way or not, it is certain that plaintiff was injured by electricity from the high tension line and the question is whether that happened through the negligence of either or both of the defendants.

We shall look first at the case against the Tallow Company. It owned the premises but did not own or control the power line. There was no duty on it to change the described condition of its premises to make ready for Trimyer's work. Whether it was negligent is to be determined by whether under the facts it owed the plaintiff a duty to warn. To constitute actionable negligence there must be a duty, a violation thereof, and a consequent injury. An accident which is not reasonably to be foreseen by the exercise of reasonable care and prudence is not sufficient ground for a negligence action. Stephens v. Virginia Elec., etc., Co., 184 Va. 94, 99, 34 S.E. (2d) 374, 377; Wyatt v. Chesapeake, etc., Tel. Co., 158 Va. 470, 163 S.E. 370, 82 A.L.R. 386.

Although Trimyer, in the work he was doing, was the servant of Layne Atlantic, an independent contractor, he was nevertheless an invitee of the Tallow Company. 65 C.J.S., Negligence, § 43(4)b., p. 515; 2 Shearman & Redfield on Negligence, Rev. Ed., § 279, p. 688; 18 Am. Jur., Electricity, § 58, pp. 452-3; Anno. 44 A.L.R. 932, at pp. 982 ff.

The owner must give notice or warning to an invitee of an unsafe condition which is known to him and is unknown to the invitee; but notice or warning is not required where the dangerous condition is open and obvious to a person who is exercising reasonable care for his own safety. In the absence of knowledge or warning of danger, such an invitee is entitled to assume that the premises are reasonably safe for his visit. Comess v. Norfolk General Hospital, 189 Va. 229, 235, 52 S.E. (2d) 125, 128; Acme Markets v. Remschel, 181 Va. 171, 24 S.E. (2d) 430; Raylass Chain Stores v. DeJarnette, 163 Va. 938, 943, 178 S.E. 34, 35.

The duty to warn, however, exists only with respect to latent dangers, not to those which are or ought to be obvious to the invitee. To sustain a charge of negligence the unsafe condition relied on must be one of which the owner knew or should have known, and the invitee did not know and could not reasonably have discovered. Deaton v. Board of Trustees, 226 N.C. 433, 38 S.E. (2d) 561; Williams v. United Men's Shop, 317 Mass. 319, 58 N.E. (2d) 2; Bosjnak v. Superior Sheet Steel Co., 145 Ohio St. 538, 62 N.E. (2d) 305; 65 C.J.S., Negligence, § 50, p. 541; 38 Am. Jur., Negligence, § 97, p. 757.

When tested by these principles the plaintiff's evidence does not establish that the Tallow Company was guilty of negligence which was the proximate cause of the plaintiff's injuries.

It is true that the Tallow Company knew that the power line carried 11,000 volts and it is also true that it gave no notice or warning to Trimyer of that fact. Trimyer testified that he did not know and was not warned that these were high tension, uninsulated wires but surmised they were insulated; that otherwise he would have picked a different position to keep from coming in contact with them. But there was no legal duty on the Tallow Company to warn him unless its knowledge or opportunity for knowledge of the danger was superior to his own. 65 C.J.S., Negligence, § 50, at pp. 544-5.

The Tallow Company employed an experienced firm to do...