192 Iowa 1 | Iowa | 1921
Some time in 1914, the defendant, in pursuance of a written contract entered into with intervener in 1914, constructed a high-potential line, either from Beacon or Oskaloosa, to its mine, for the purpose of supplying power for the operation of its mining machinery. Three copper wires, carrying 11,000 volts, were strung on poles 22 feet above the ground, and carried into a small building, referred to in the evidence as the “transformer house,” which was located about 35 or 40 feet from a 6-inch drill hole, through which electric wires carrying a current of 250 volts were carried, through several pieces of pipe joined together, into the mine, where they were attached to the machinery therein. This transmission line was constructed and used solely, prior to March 17, 1917, for the purpose of supply
About the middle of March, 1917, a representative of inter-vener orally notified the defendant that its coal was exhausted and that the machinery had been removed from the mine, and requested that the current be turned off. This was done on March 17th, by turning switches on top of one of defendant’s poles at Beacon. Later, the wires- were disconnected from the transformer by one of the employees of defendant. The current, upon order of defendant’s superintendent, was again turned on, April 21st. In the afternoon of June 1st, Evans, the deceased, went to the drill hole near the transformer house, with two of the other employees of intervener, with the proper and necessary tools, for the purpose of removing the pipe from the drill hole. The drill hole was about 36 ihches to one side of the nearest transmission wire. The pipe was removed from the drill hole by raising .it by means of a block and tackle until the joint was elevated above the surface of the ground, when the pipe was unscrewed by the use of tongs, applied to the pipe above and below the joint. After the pipe was loosened, Evans finished the unscrewing of the joint with his hands. While engaged in unscrewing with his hands a piece of pipe extending about 22 feet above the ground, the upper end came in contact with the nearest transmission wire, instantly killing him. Before the wires were detached, when the current was on, a buzzing noise was emitted from the transformer, which could be heard for a distance of 75 feet or more. The two employees of intervener who were assisting Evans to remove the pipe from the drill holes testified that they went to the transformer house, looked in, and heard no sound. The reason assigned by defendant’s superintendent for ordering the current turned on, on April 21st, was to prevent the copper wires from being injured or stolen. W. S. Hatchitt, line foreman of defendant, testified that, when he disconnected the transformers, he put a sign on the inside of the transformer house, and also on the door thereof, reading: “Danger — high tension lines.” Other witnesses testified to the same effect. The employees of intervener who were assisting Evans to remove the pipe testified that there was no sign or warning about the building, except a metal plate on the door, which
J. H. Porter, the superintendent of defendant, testified that the current was turned on on April 21st, after a conference and an agreement to that effect with W. W. Branigar, manager, secretary, and treasurer of the coal company, in the presence of C. W. Pilgrim, one of the employees of defendant, whose testimony corroborated that of Porter. He further testified that this conversation was, in substance, repeated at different times, and that, upon one occasion after April 21st, Branigar complained to him because the transmission line was interfering with the telephone service in the vicinity of the mine. This testimony was all emphatically denied by Branigar, who testified that he had no knowledge that the current was turned on after it was cut off on March 17th. No other evidence was introduced by defendant tending to show that any of the officials or employees of intervener knew that the current was turned on after March 17 th.
While other grounds of negligence are stated in the petition, the court, in its charge to the jury, submitted only the following, which we quote from the instruction.of the court:
“First. In charging said transmission wires with about 11,000 volts of electricity, when said wires were not in use, and when defendant knew, or by the exercise of ordinary care should have known, that said coal company’s employees, in dismantling-said mine, would be working in close proximity thereto, so as likely to be injured thereby.
“Second. In turning the electric current on said transmission wires without first notifying the Bolton-Hoover Coal Company or its employees, or said James T. Evans, that the electric current was turned off of said transmission wires.”
At the close of the evidence, counsel for defendant moved separately for a directed verdict in its favor, and against both plaintiff and intervener. Shortly after the death of Evans, application was made by the coal company to the district court of Mahaska County for an order commuting all future payments to the dependents of deceased to a lump sum, as provided by Section 2477-ml4 of the Supplement to the- Code, 1913. An
The law is well settled in this state that one furnishing electricity, while not an insurer, is held to the highest degree of care consistent with the conduct and operation of the business. Harter v. Colfax E. L. & P. Co., 124 Iowa 500; Barto v. Iowa Tel. Co., 126 Iowa 241; Knowlton v. Des Moines E. L. Co., 117 Iowa 451; Toney v. Interstate Power Co., 180 Iowa 1362. See, also, Haas v. Washington W. P. Co., 93 Wash. 291 (160 Pac. 954).
Negligence is the failure of one party to discharge its duty to another. Can it be said, under the facts disclosed, that the death of Evans was due to the failure of the defendant to perform some duty which it owed to the intervener or to deceased?
It appears from the record that intervener was engaged continuously in the work of dismantling its mine, from the middle of March until after June 1st, when the accident occurred. The record does not disclose much of what was necessary to be done, to accomplish the work of dismantling the mine. The mining
It seems to us that one who sets in motion such a dangerous and deadly agency as a 'current of electricity carrying 11,000 volts, for the sole purpose of protecting it from trespassers, and under the facts shown in the record before us, cannot escape liability for damages because its agents did not have actual notice that a person lawfully employed, as Evans was, might, in the performance of his duty, come in contact therewith, and be injured or killed. The knowledge that the mine was to be abandoned, that machinery had been removed therefrom, and that the process of dismantling had started, and that the electric current was no longer desired for the operation of the mining machinery, imposed upon the defendant the duty of ascertaining whether the work of dismantling had been completed, and that workmen employed by the coal company for that purpose might come into contact with the wires, and the duty, of notifying the officers of said company, or its servants, that the current had been or would be again turned on. It is significant
But it is further urged by counsel for appellant that the employees o'f intervener would have been trespassers upon the land where the drill hole was located, if they had not first obtained permission to go thereon, from the person in possession or control thereof. The testimony upon this point is that Evans went to the house of J. E. Kent, a tenant in possession of the land, and jokingly inquired if they might go down in the pasture and take the pipes out of the drill hole. The only answer made by Kent was that they would better look out for the electricity. As stated, the drill hole was only 35 or 40 feet from the transformer house, which was built and owned by the coal company. Evans was not, at the time of the accident, a trespasser, but was engaged in a duty which was made hazardous only by the act of the defendant in turning on the current without notice to the coal company, for the protection of those who, it should have anticipated, might be employed in doing the very work which he was doing at the time of the accident. The evidence presented a question of fact for the jury; and we cannot say, as a matter of law, that the defendant was not negligent in turning on the current without notice to the coal company. The motion to direct a verdict for the defendant against the plaintiff was properly overruled.
The petition contained numerous’other allegations, and the testimony of Evans was brief, and could not have been misunder
III. As previously stated, J. H. Porter and two of the employees of defendant, including W. S. Hatchitt, testified to an alleged conversation between Porter and Branigar, on April 20th, the day before the current was turned on. It is claimed by these witnesses that Branigar, in this conversation, assented to the suggestion of Porter that the current be turned on for the protection of the wires, in which the coal company had some interest, under the contract for the construction of the line. All employees of defendant working on its transmission lines kept daily time slips, on which is entered the place where they were engaged, together with the number of hours they were employed during the day. Time slips signed by Hatchitt, dated March 17, two dated April 21, and one dated May 15, 1917, were offered by the defendant, but were excluded, upon the objection of counsel for plaintiff. The slip dated March 17th bore the following: “Names — Open switch Bolton Line;” one'of those of April 21st: “Names — Disconnecting transformers at Bolton and throwing in switch Beacon;” and the other one dated April 21st: “ Names — Bolton Line;” and that of May 15th: “ Names— Bolton line trouble.”
It is the claim of counsel for appellant that these slips tended to corroborate the testimony of the witnesses to the alleged conversation between Porter and Branigar, and that, under our holdings in Edwards v. City of Cedar Rapids, 138 Iowa 421, Graham v. Dillon, 144 Iowa 82, Worez v. Des Moines City R. Co., 175 Iowa 1, and Hanson v. City of Anamosa, 177 Iowa 101, they were admissible as memoranda made by disinterested witnesses at the time of the transaction, and in the line of their duty.
V. After the verdict of the jury was returned, the court overruled plaintiff’s motion, filed at the close of the evidence, assailing the petition in intervention, and ordered judgment to be entered, subrogating intervener to the rights of plaintiff to the extent of $2,002.19, with interest thereon at 6 per cent from July 14, 1917, the date on which this sum was paid to the