Weisser v. Otter Tail Power Company

• Citation: 318 F.2d 375
• Decision Date: 05 June 1963
• Docket Number: No. 17129.,17129.
• Parties: Arlo WEISSER, Individually and as Trustee of the North Dakota Workmen's Compensation Bureau, Appellant, v. OTTER TAIL POWER COMPANY, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

318 F.2d 375 (1963)

Arlo WEISSER, Individually and as Trustee of the North Dakota Workmen's Compensation Bureau, Appellant, v. OTTER TAIL POWER COMPANY, Appellee.

No. 17129.

United States Court of Appeals Eighth Circuit.

June 5, 1963.

J. P. Dosland, of Dosland & Dosland, Moorhead, Minn., for appellant; Lanier, Knox & Shermoen, and Eugene A. Kruger, Fargo, N. D., with him on the brief.

J. Gerald Nilles, of Nilles, Oehlert & Nilles, Fargo, N. D., for appellee.

Before SANBORN and BLACKMUN, Circuit Judges, and STEPHENSON, District Judge.

STEPHENSON, District Judge.

This appeal is from a judgment for the defendant entered on a directed verdict. The appellant brought this action individually and as trustee of the North Dakota Workmen's Compensation Bureau against the Otter Tail Power Company, the distributor of electricity through the power lines which were involved in this accident. Jurisdiction is based upon diversity of citizenship.

The appellant was an employee of Collins Construction Company, a highway contractor, engaged in resurfacing Highway #3. At the time of the accident the construction company was setting up a portable asphalt plant 200 to 300 feet east of said highway. This plant site was a ten acre plot of farm land away from any heavily populated area. At the time of the accident, the contractor's crew was in the process of removing a large smokestack from a "low-boy". In order to remove this smokestack it was necessary to engage the services of a truck with a boom on it which could be used for lifting. A chain was fastened to the smokestack and secured to the cable on the boom. The plaintiff was stationed at one end of the smokestack and the foreman of the crew was at the other end steadying the smokestack. It was also the foreman's duty to give directions to the driver of the boom truck by hand signals. After so unloading this smokestack, and while attempting to position the smokestack in order to set it on the ground under the power lines, the boom touched the defendant's power lines permitting an electrical current to pass though the cable, chain, smokestack and into appellant's body. From this electrical shock the appellant suffered severe injuries.

Defendant's power line is located on the east side and parallel to U. S. Highway 3. At the point of the accident the line was 29 feet six inches from the ground. The line consists of three wires each carrying 24,000 volts. It was stipulated that this line was constructed in compliance with the safety rules for the installation and maintenance of electric supply lines as prescribed by the United States Department of Commerce, popularly referred to as the National Electric Safety Code, which rules have been adopted by the Public Service Commission of the State of North Dakota for construction in North Dakota. It was further stipulated that there was no claim of a construction defect nor was there a claim that these particular lines should have been insulated.

There is no evidence that the defendant had ever been notified of the work under these power lines although there is evidence that the defendant's manager in the area had knowledge that the resurfacing project was to take place that spring and had seen equipment stored near the accident scene. It is also noted that it would have been possible for the defendant to have de-energized the wires in this area without disrupting the electrical service to any of the defendant's customers.

The question before the trial court was whether there was sufficient evidence of negligence on the part of the defendant to raise a jury question, that is, upon application of the appropriate law could reasonable men have differed in the results because of a factual dispute. The trial court at the close of all the evidence sustained appellee's motion for a directed verdict, ruling there was "no evidence whatever of negligence on the part of the defendant." Appellant urges that the trial court erred in this ruling.

This being a diversity case, the applicable law is that of a state, there seems to be no question, and none has been raised, but that the state law to be applied is the law of North Dakota.

The only North Dakota case cited by either party on the question of negligence is Olson v. Cass County Electric Cooperative, Inc., 1959, 94 N.W.2d 506. In that case the North Dakota Supreme Court affirmed the district court's denial of defendant's motion for a judgment notwithstanding the verdict. In the Olson case a pole bearing electric wires broke upon being bumped by the plaintiff's farm equipment. The evidence showed that the pole had been affected by shell rot with the result that the sound wood had been reduced from over six inches to four or five inches at the point of the breakage. The defendant in that case had no regular policy of inspecting poles other than observation by employees while working on other jobs. The court states that a distributor of high voltage electricity although not an insurer has a duty of erecting and maintaining its transmission lines with the care commensurate with the dangers involved and that such care includes reasonable inspection. Since the negligence involved is primarily one of failure of reasonable inspection, this case is of little help to us. In the case presently before us there is no claim of any defect in the construction of the lines.

The question here is one of the duty of suppliers of electricity in North Dakota to maintain their power lines in a foreseeably safe condition. With no direct statements from the North Dakota Supreme Court before him, it was the duty of the district judge to rule on the law in accordance with his prediction as to how the North Dakota Supreme Court would rule. Village of Brooten v. Cudahy Packing Co., 8 Cir., 1961, 291 F.2d 284, 288; National Bank of Eastern Arkansas v. General Mills, Inc., 8 Cir., 1960, 283 F.2d 574, 576.

This court as a rule accepts the views of the trial court as to doubtful questions of local law, including the adequacy of evidence to make a case for the jury. Anthony v. Louisiana & Arkansas Railway Co., 8 Cir., 1963, 316 F.2d 858; Homolla v. Gluck, 8 Cir., 1957, 248 F.2d 731, 733; Northern Liquid Gas Co. v. Hildreth, 8 Cir., 1950, 180 F.2d 330, 336. In our review of doubtful questions of state law we do not determine whether the trial court has reached a correct conclusion but only determine whether it has reached a permissible one. Village of Brooten v. Cudahy Packing Co., supra; Cannon v. Travelers Indemnity Co., 8 Cir., 1963, 314 F.2d 657, 664. There is ample authority to support the legal position which was taken by the district judge. In Hale v. Montana-Dakota Utilities Co., 8 Cir., 1951, 192 F.2d 274, 276, this court said: "Negligence to be actionable must be such that the injury complained of might reasonably have been foreseen or anticipated." In the Hale case the plaintiff was injured when a surveying rod which he was carrying came in contact with the defendant's electrical transmission lines. The wires at that point were 14 feet 7 inches above the ground. A directed verdict was sustained notwithstanding the fact that there was evidence that the practice among electric companies required a minimum clearance of 17 feet. It was...