Wolfinger v. Shaw

• Decision Date: 14 June 1940
• Docket Number: 30900.
• Citation: Wolfinger v. Shaw, 138 Neb. 229, 292 N.W. 731 (Neb. 1940)
• Parties: WOLFINGER v. SHAW ET AL.
• Court: Nebraska Supreme Court

292 N.W. 731

138 Neb. 229

WOLFINGER v. SHAW ET AL.

No. 30900.

Supreme Court of Nebraska.

June 14, 1940

Syllabus by the Court.

1. One who is traveling along a public highway and comes upon electric wires and a fallen pole in the traveled portion thereof, with nothing to show that it is a live or dangerous wire, may voluntarily attempt to remove it from the highway if he does so in a careful and prudent manner; and if the wire is energized and he is injured thereby, he is not guilty of contributory negligence as a matter of law which will bar a recovery of damages, for such acts are an incident of travel along the highway and must be anticipated by those who maintain energized wires alongside of traveled public highways.

2. It is not contributory negligence for a plaintiff to expose himself to danger in a reasonable effort to save a third person or the chattels of a third person from harm.

3. In order to relieve a person from a charge of contributory negligence as a matter of law in attempting to save persons or property from harm, it is sufficient if to a reasonably prudent person the existing circumstances create the apprehension of danger, even though danger to a definite person or a definite property was not actually imminent at the moment.

4. The extent of the risk which a person is justified in taking under the circumstances increases in proportion to the imminence of the danger and the value of the advantage that can be realized from encountering the danger and attempting to remove its hazards. Or, stating it conversely, the less the danger to a third person or property, the less the risk which a party may encounter in acting to save life or property without becoming guilty of contributory negligence.

Appeal from District Court, Lancaster County; Chappell, Judge.

Action by Fillmore M. Wolfinger against Fred Shaw and the Iowa Nebraska Light & Power Company to recover for personal injuries alleged to have resulted from contact with an energized electric line of the Iowa Nebraska Light & Power Company. From an adverse judgment, the Iowa Nebraska Light & Power Company appeals.

Judgment affirmed.

CARTER and PAINE, JJ., dissenting.

Lee & Sheldahl, of Lincoln, and Crossman & Barton, of Omaha, for appellant.

Walker & McArthur and George I. Craven, all of Lincoln, for appellees.

Heard before SIMMONS, C. J., and ROSE, EBERLY, PAINE, CARTER MESSMORE, and JOHNSEN, JJ.

SIMMONS Chief Justice.

In the district court plaintiff secured a judgment for injuries alleged to have resulted from contact with an energized electric line of the defendant. Defendant filed a motion for a new trial. Pending that motion, defendant filed a motion for judgment notwithstanding the verdict. The trial court sustained the latter motion. On appeal, this court ( Wolfinger v. Shaw, 136 Neb. 604, 287 N.W. 63) reversed the trial court's order and remanded the case. The trial court overruled the defendant's motion for a new trial. The cause is now here for review on defendant's assignments of error.

Originally the Iowa Nebraska Light and Power Company, a corporation, and Fred Shaw, its agent, were the defendants. At the close of plaintiff's case in chief, the trial court dismissed the action as to Fred Shaw and the case proceeded against the power company.

There was a conflict in the evidence as to practically all allegations in issue. The jury having found for the plaintiff, unless otherwise stated, we recite the testimony as offered by the plaintiff.

The defendant operates a power line serving farm customers in Seward county. The line involved consisted of two lines of naked number 6 wire, about one-eighth of an inch in diameter, strung on cross-arms, 4 feet long, placed at the top of wooden poles. It was stipulated that the line was a " primary electric light line and energized" on the morning of the accident. Defendant's witnesses testified that the line carried an alternating current with a voltage " nominally referred to as 2,300 volts single phase." At that point where the accident occurred, the line ran east and west along the south side of a graded dirt highway near Pleasant Dale. The surface of the road, prepared for travel, was 16 to 18 feet in width.

On the evening of May 5 or early morning of May 6, 1936, there was a storm consisting of a light rain and wind. A pole on the line in question had rotted at the base, and some time during the night fell so that it laid across at least two-thirds of the traveled portion of the road. The wires were not broken. The pole rested on the cross-arm in the road, and on its base at the point where it was broken off. The pole was visible for a considerable distance from the east. To the west of the pole about 20 or 25 yards, the highway went over the crest of a hill.

The defendant's agent Shaw was notified about 7:45 a. m. that the pole was down and across the highway. He was again notified about 9 a. m. Although there were two points near Pleasant Dale where the current on this line could be cut off, that was not done.

The plaintiff, a man 63 years old at the time, was an employee of a dairy farm situated on the north side of the highway. The broken pole was several hundred yards west of the house. Electricity was used at the dairy farm and by the plaintiff in performing his work about the dairy barn. The plaintiff knew at breakfast time that the pole was down and that Shaw had been notified. Shortly after 10 a. m., the plaintiff left the farm buildings and went west along the highway to cut brush. He saw the pole lying in the road some 300 to 400 yards ahead. At that time, he decided to do nothing about it. Plaintiff knew that other employees would be passing that point with farm machinery during the day, and that the public generally used the highway.

When the plaintiff reached the pole, he suddenly decided to shove it out of the roadway. He approached the pole from the north side, reached for the cross-arm at a point near the pole and about a foot and a half from the top wire. The next he remembers he was south of the wires lying on the ground, his left hand clasping the lower wire. His left elbow was on the ground, and " flame" was about his hand and passing from his elbow to the ground. He tried to disengage his left hand by using his right hand, again became unconscious, and then came to, free from the wires. There were no blisters or breaking of the skin on his hands, elbow, or other parts of his body although his left hand was brown or black. After the accident, plaintiff walked out into the field where another man was working, who testified that he was dragging one foot, " staggering an awful lot," and that he " kinda hung down on one side." Before the accident, he was a strong, able-bodied man. Following the accident, he was able to be about, but not able to do his work satisfactorily or fully use his left arm. Five days after the accident, he was interviewed by an employee of the defendant and urged to see a doctor. On May 12 he did so. Following that, he was treated by doctors of his own choosing and was examined a number of times by doctors for the defendant, the last examination being made at the time of the trial. Plaintiff's evidence shows that since the accident he has suffered from headaches, aches about his lungs, back, and arms, and general weakness of his arm muscles. His eyes have been painful and his vision impaired. One of plaintiff's doctors testified that plaintiff was totally and permanently disabled. Both of plaintiff's doctors testify that his disabilities are the result of the electric shock which he received. On the other hand, doctors, called by defendant, testify that he has at least part of the disabilities claimed, and one testified that plaintiff was faking in part. Defendant's doctors agree that his disabilities were caused by disease and advanced age, and not by electric shock.

Plaintiff testified he knew that, if he came in contact with an energized electric line, injury might result; that he did not know that this line was energized; that he would not have tried to move the pole had he known it was energized; that the bare wires looked like a telephone line; that he did not know that this line was dangerous to touch; that he did not know that it serviced the dairy farm where he was working; and that his purpose in attempting to move the pole was to get it out of the highway and give a clearance for other employees of the dairy farm to pass with horse-drawn farm machinery, and to avoid the danger of vehicles or animals becoming entangled in the wires or pole.

Plaintiff knew that other vehicles had safely passed the pole by going into the ditch or to the north side of the pole on the graded portion. There were no persons, animals, or traffic on the highway at that point at the time he attempted to move the pole.

On the basis that this was a 2,300-volt line, defendant's witnesses testified that, under the circumstances here, the passage of electricity through a person would seriously burn both flesh and clothes at the point of ingress and egress of the electrical charge. Plaintiff's expert witnesses, admitting that burns might result, testified that they would not necessarily follow in all cases. Defendant's witnesses admitted that, under certain conditions (which they claim did not exist here), a person could be electrocuted without having burns on his body.

Defendant's first assignments of error are that the trial court erred in overruling its motions for a directed verdict at the close of plaintiff's case in chief, and at the time both parties rested their case. These contentions are based upon the propositions that plaintiff's evidence is inherently impossible and clearly against the laws of electricity and the physical facts, and...