Union Light, Heat & Power Co. v. Blackwell's Adm'r

• Decision Date: 27 January 1956
• Citation: 87 A.L.R.2d 264,291 S.W.2d 539
• Parties: The UNION LIGHT, HEAT & POWER COMPANY, a Kentucky Corporation, Appellant, v. William BLACKWELL'S ADM'R (James B. Milliken et al.), Appellees.
• Court: United States State Supreme Court — District of Kentucky

Page 539

291 S.W.2d 539

87 A.L.R.2d 264

The UNION LIGHT, HEAT & POWER COMPANY, a Kentucky Corporation, Appellant, v. William BLACKWELL'S ADM'R (James B. Milliken et al.) Appellees.

Court of Appeals of Kentucky.

Jan. 27, 1956.

As Modified on Denial of Rehearing June 22, 1956.

Stephens L. Blakely, Marion W. Moore, Covington, for appellant.

McGarry & Rich, Sawyer A. Smith, Covington, Louis Levy, Cincinnati, Ohio, for appellees.

STANLEY, Commissioner.

William Blackwell, employed by a construction company building a flood wall in Newport, was electrocuted by a high tension wire of the appellant, The Union Light, Heat & Power Company. We reversed a judgment rendered on a verdict for the defendant in an action for his death in Blackwell's Adm'r v. Union Light, Heat & Power Co., Ky., 265 S.W.2d 462. On a second trial the verdict was for the plaintiff for $50,000. The appeal is from the judgment thereon.

The facts are fully related in the first opinion. In brief, they are that the high tension wires ran over a street and place where construction work was to be done. It appeared that the presence of the wires would interfere with the construction work, and at the contractor's instance the Union Company relocated the wires and ran them above a vacant lot on the other side of the street. The contractor expected to use the lot for the storage of material and equipment. The wires, of 13,500 voltage, were run 36 feet above the ground.

The deceased, Blackwell, was in the act of attaching a cable suspended from the end of a 55 foot crane boom to a metal bucket, which seems to have been directly beneath the wires, when he was electrocuted. Some lumber on the ground was to be moved into the street by the crane. The crane operator, who was the only eyewitness, testified on both trials that the deceased had looked up at the wires as he went about this job and had attempted to keep a safe distance from them and did not bring the cable closer than six or eight feet to the wires, but, nevertheless, was electrocuted, the inference from his testimony being the electricity had 'jumped' from the wires to the cable to which the bucket was attached.

As stated in the first opinion, 'the most difficult question' was whether or not the defendant was guilty of negligence per se in failing to observe the provisions of a city ordinance which required insulation of all electric wires. Our attention was devoted primarily to that point. We stated that there was sufficient evidence to take the question of the defendant's negligence to the jury because of the conflict of opinion testimony concerning the safety and practicability of insulating the wires and the fact they were maintained in close proximity to the lot where deceased and other employees of the construction company were required to work. We find substantially the same conflict in expert opinions in the present record.

In the course of the opinion reference was made to the testimony of the construction company's engineer that he had informed Union's engineer that the vacant lot would not be used in connection with the work. This, however, was regarded as not important because, as a matter of fact, the lot had been used for storage purposes for several weeks before the accident and Union's agent either knew or should have known that fact. The instruction which we prepared for another trial of the case stated the defendant's duty with respect to insulating or protecting the wires 'so as to make them free from danger to those who might be brought in contact with same while performing such work as could reasonably have been anticipated by the defendant.'

The character of the use of the vacant lot and the knowledge thereof by the defendant have become of controlling importance.

It is well proven that defendant's agents were told the reason the construction company wanted the wires relocated was that they would interfere with the work to be done on the street and on a lot over which the wires ran and that a crane with a boom would be used there. Kircher, the defendant's engineer, testified that Allen, the contractor's manager, had told him that would be the only place he would use the equipment, and that he never had any knowledge of the use of the crane or other machinery on the so-called vacant lot. He was at the place only once thereafter and that was about the time the work was begun. Three months elapsed before the accident occurred. Allen testified that this vacant lot had been used for the storage of small tools such as pumps, wheelbarrows and the like, some of which were placed under the wires. Wright, the crane operator, testified that lumber had been stored there from the beginning of the job, and he had moved things off the lot with the crane 'three or four weeks or a month' previously. This is the strongest evidence in behalf of the plaintiff to show the use of the crane on the lot. But Wright's testimony on this point is by no means definite as to the particular lot he referred to, and Allen's testimony indicates he must have had reference to the work on the project at other places and not on this particular lot.

Foresight or reasonable anticipation is the standard of diligence, and precaution a duty where there is reason for apprehension of danger. Even where such a dangerous instrumentality as a highly charged electric wire is involved, with the consequent imposition of the highest degree of responsibility, liability for harm is grounded upon negligence and not insurance. All the evidence in this case shows there was no reason for the power company to apprehend that a crane with a long boom would be used on the vacant or storage lot above which it had placed its wires nor, as we have said, was there any evidence that the company knew it was there before the accident. Knowledge of the use for the storage of lumber was knowledge of a use which did not create danger from the electric wires. There was no duty to keep this lot under inspection. We do not regard evidence in this case as showing notice, actual or constructive, of any dangerous use of the lot.

It seems to us the case is controlled by Kentucky & West Virginia Power Co. v. Adams, Ky., 267 S.W.2d 717, where a crane with a long boom made contact with or came close to a high tension wire and current ran through the boom to the ground and injured a workman. We held as a matter of law that the power company was not negligent. It had knowledge of the use of such equipment as the crane around the coal tipples, but there was no evidence or notice that such equipment would be used in proximity to the power line. A like case in principle and application is Morton's Adm'r v. Kentucky-Tennessee Light & Power Co., 282 Ky. 174, 138 S.W.2d 345.

We stated in the first opinion that notice had been given the defendant that the vacant lot was to be used 'for storage' of material and equipment; and since the lot 'was actually used for storage purposes for several weeks before the accident', the defendant's agents 'either knew or should have known of that fact.' Nothing was said in the former opinion or, indeed, was there anything in the record to show the defendant's knowledge or notice that a crane with a long boom would be or was expected to be or had been used on the vacant lot. On the contrary, all the evidence was and is to the effect that the very purpose of relocating the wires over this lot was to avoid danger from such use.

As stated, on the former appeal the mind of this court was centered upon the novel and controversial question as to the effect of a city ordinance which required insulation of all electric wires without distinction between those of low tension and those of extremely high power. Not much attention was given to the question of notice of the use of the crane on the storage lot where the accident occurred. The instruction prepared for the second trial included as a condition to the right of the plaintiff to recover damages that the decedent 'was performing such work [at the time and place] as could reasonably have been anticipated by the defendant.' By a critical comparison of the two records we find the evidence of constructive notice of the use of the crane on the lot, above which the defendant had strung its wires, to be substantially the same. But it does not show any negligence on the part of the defendant.

The appellee strongly relies on the law of the case rule and insists that this court settled the question of sufficiency of the evidence to go to the jury upon the second trial.

It is an iron rule, universally recognized, that an opinion or decision of an appellate court in the same cause is the law of the case for a subsequent trial or appeal however erroneous the opinion or decision...