*1 516 they further testi- upon foregoing facts
breath. Based the they himof that from his conduct and their observation fied influence of alcohol opinion were under the of he was operate automobile an an to such extent that he was unfit to upon public highways of this State. his sobriety person a or of
We believe an degree direct of intoxication can be determined him, they may express swers of have seen and that those who fairly may be thereto, opinion their in relation as intoxication knowledge. common considered in the realm of may state whether case such as this A witness intoxicating liquor person the influence of a certain is under given The witness in effect appearance at a time. or had that opinion facts, gives his then describes the particular time. indications whom he has observed at Witnesses, whether called commonly known. are intoxication regard opinions not, may testify this their or experts as and. Wigmore See respect admitted in evidence. should be in this 571, Evidence, Secs. 3rd Ed. On officers does rise think the rather, testimony; we feel such testi- dignity expert falling general within knowl- mony be classified should not, experts are regardless of whether edge persons DiFonzo, Piano v. of Robelen the case and in this sense distinguishable. 346, 514, 2d Storey 169 A. therefore, question, is answered certified The third the affirmative. corporation State Company, Powder Di- Below, Appellant, v. Iona M.
Delaware, Defendant Below, Appellees. al., et Plaintiffs Sabatino, al., Below, v. Appellants, Iona M. et Plaintiffs DiSabatino, corporation *2 State Company, Powder Delaware, Below, Appellee. Defendant *3 7, 1963.)
(January Justices, and Chan- and Vice Short, Terry, Wolcott cellor, sitting. Berl, (of Richard L. McMahon F. Anderson and
David Anderson) for defendant-below. Potter and Morford, (of Peter R. and Warren Green Samuel Russell Young Conaway) plaintiffs-below. and Delaware, Supreme and Court State of Nos. (for Court): majority J. Wolcott, by These are defendant cross-appeals plaintiffs both which, trial, hung jury. an action after in a resulted defendant, Company appeals two inter- Powder from locutory viz., Court, first, Superior orders of the denial second, and, defendant, motion for a directed verdict for the 50(b), the denial of a motion Court Rule Superior under judgment Del. C. for for the defendant.
The cross-appeal by plaintiffs various was taken rulings adverse during made of the trial. The cross- course appeal supported trial upon theory if a second required, disputed ques- from this instructions Court on tions fu- possibly prevent would assist trial court and ture appeal.
The action was commenced widow for death husband, her Bonding Massachusetts and Insurance partial subrogee, as to recover the amounts it will be obliged pay compensation under the Delaware Work- Compensation men’s Law as the insurer carrier for the de- employer. cedent’s dispute
There is no parties between the as to the facts *4 underlying controversy. this briefly. state them
Hercules is the owner of an power electrical line on its Experimental charged Station. 12,000 This line is with volts electricity carried in three wires, uninsulated the lowest approximately which 11 feet top below the pole. the The line consists of a poles series of approximately wooden high, making angle 60 feet an in its course. Pole #104 angle running top pole the by guys two from the is secured ground. power The line was con- to anchors buried in the contractor in accordance structed in for Hercules a Engineer- plans prepared by Hercules’ specifications with accepted in- ing approved and the final Department, which power stallation of the line. designed by provided for two power as Hercules
The fine One guys two installed each. on Pole insulators #104 near strain insulator located specified insulator was as wood porcelain top pole, specified second was the of the the guy. down As “Johnny located further the Ball” insulator only strain insulator was actually an 8-foot installed wood pole at guys where were attached to installed in constructing power to line called top. The contractor Engineering Department’s attention the vari- the Hercules This vari- plans and actual installation. ance between the accepted by Hercules. approved and ance was agreement entered into an with the Hercules In 1957 County for the construction of Levy Castle Court New Experimental Station. the lands of its sanitary sewer across granted Levy agreement, Hercules of the Under the terms purpose. sewer to be installed an easement for such The Court an Experimental and also contained exten- Station served land owned designed provide sewer service to sion servicing paid the of the sewer Hercules. Hercules cost Station, paid part Experimental but no of the cost of the ex- tension of sewer line. plan Levy pro- Hercules a Court exhibited to request sewer, and at Hercules’ relocated
posed course of line. The relocation of the exten- of the extension the course brought proximity it in Pole sewer close sion #104 approved power relocation Hercules’ fine. the extension. *5 Brothers, Levy with Court DiSabatino contracted Inc., decedent, the employer of the for the installation of the proposed day death and a sewer line. On the of decedent’s he operating heavy equipment fellow workman connec- were installing tion with the of the sewer in the extension line vicinity they pole they the approached Pole As saw #104. two guys hanging top pole the the the with the loose from pole. loose ends ten about or fifteen feet from the base of the Saying way, that he would move wire out the the de- the wire, grasped guy steps cedent took two or three and fell dead. It he was later determined from electrocution. that died
There no guy direct as to how the wire be- low the charged electricity, wood strain insulator became with plaintiffs’ expert but theorized that witnesses decedent moved the wire such manner as to cause wire below high 8-foot insulator to come into contact with the lowest wire, tension top pole. located 11 feet of the Her- dispute cules does not this surmise. subsequent examination,
From it appeared that two guy wires of Pole had been cut awith hack saw leav- #104 ing firmly their ground anchors and the imbedded dangling wires top pole. loose from the of the There is noth- ing in guy the record to show who in fact cut the wire. It clear, however, seems probably decedent did not. also, clear, It is that Hercules did not direct the wires cut, be and that it had no notice that had been It cut. probably further clear that the wires morning were cut in the accident, day possibly during some time preceding day, although proof there is no direct as to this.
Expert testify were called both witnesses sides to proper to the standards of installation to be followed in the power engineer construction of electric lines. Hercules’ who designed approved construction of the line testified complied the line as constructed with the National Elec- Safety
trical respect Code wires. insulation *6 expert Engineer Hercules Dela- also as an the Chief called Light guys Company ware Power & who that the testified properly practice were fol- insulated and conformed to the Light Company, lowed & the local elec- Delaware Power utility company. tric experts
The plaintiffs expert two witnesses. These called be- opinion testified that in their installation was unsafe the energizing part it prevent cause did the of the lower agreed experts the wide under circumstances. These all guide general in only the installations use was for such Safety Code, general the National Electrical and that it was practice pattern in such installations to follow the established by utility companies in the area. that, experts agreement
All in as installed the were anchors, guys no in were in attached to their the dangerous, possibly have become ener- wise and could not experts, gized. Furthermore, all the it readily guys as these were do not become clear that installed ordinarily fact, a rare event and occurs In such is loosened. weather conditions. only after some unusual questions presented by Initially, dispose we two argue in that error was committed appeals. Plaintiffs the two expert on the to examine witnesses permitting Hercules Safety Code since that Electrical basis of the National code proof standard of in evidence as inadmissible to be followed. stallation safety prepared but that codes have no doubt
We agencies government are not admissible as in issued the truth of the statements or prove dependent evidence Annotations, 122 A. in them. L. R. contained standards long permissible has been to ask on 2d But it L. R. 778. A. expert an witness on cross-examination well as direct opinions general and to detail grounds of his state Wigmore data II on opinion. which forms the his basis of Evidence, is all was done in the case at bar. This § knowledge Safety All of the experts Code and admitted recognized guide. Code, itself, it as a was not offered in nothing basing evidence. see improper We examination expert recognized safety of an witness on such a code.
Next, argues decedent, at death, licensee, time he plaintiffs met his was a mere while the contend that he Upon was a business this basis invitee. urge that Hercules owed different of care to the standards point decedent. think materiality much to be without but, event, any under the facts before us we think the de permitted cedent was a invited be on land *7 purpose of a dealings Hercules for connected with business Court, between Levy Hercules and the of which decedent’s such, employer agent. anwas As he awas business invitee. Torts, Restatement 332. § of
The appeal basic of Hercules is whether or not under facts of the negligent case Hercules was in high voltage manner installed, in which its line was and whether, negligent, negligence if proximate was the cause argues of decedent’s death. Hercules that under the facts it negligent was but exercised due care in installation of high argues its tension line. It negligence the issue of its not have been to jury. plaintiffs, should submitted The hand, argue duty on the other that it was the of Hercules to guy in such install wires fashion that could under no cir- charged electricity. This, cumstances ever become it is and, accordingly, to argued, negligence Hercules failed do operating grasped at the time the decedent wire high with the made contact tension wire. and An owner land who has had erected main power on his line of carrying tains land uninsulated wires electricity voltage of is under high duty the same of safe- 524 public may
guarding injury who come from members of engaged companies in contact are with it as electric Electricity, 29 C. J. 37. transmission of electric current. S. § negli- electricity injuries his He is liable for from caused public. gence, safety He but he not an insurer of the is danger present electricity is to bound know the inherent degree and, consequently, required care to exercise a 38; Electricity, danger. 29 C. J. commensurate with S. § Jur., Electricity, 48; Annotation, L. 2d Am. 55 A. R. 18 § Wilmington Co., (Del.) 128; City v. 7 Houst. Cook Electric 306, A. 643. 32 latently deadly electricity, a
Due nature of to maintaining person, corporate, or line either individual high voltage electricity required provide protec carrying any safely guard against contingency, com tion which will circumstances, accidents which a bination of hap probable foreseen ordinary intelligence would have Electricity, 39; Jur., Electricity, pen. 18 Am. 29 C. J. S. § § 216, Power 226 Minn. 48; v. Northern States Greenwald Sartain, 320; Harvester Co. v. 32 32 2d International N. W. 854; Royal Indemnity Mid App. 425, 222 S. W. 2d v. Tenn. 628, 960; Corp., 183 App. 42 Cal. P. land Counties Pub. Serv. Lehigh Foundries, Inc., Pa. 2d v. A. Stark duty extent of the of the landowner he con standard care must public, members foreseeability injury to is terms form measured Torts, by him. Restatement the situation created § *8 Ed.), Electricity, 53; (2d Jur., Prosser on Torts 302; 18 Am. § landowner, determining whether not a Therefore, or in 49. § line, potentially maintaining high installing tension high care demanded has standard of dangerous, met question of into the wheth always resolves itself him, test provided safely against man, has not, he as reasonable er or others, or combination reasonably acts foreseeable all another, one similar to subsequent act of Unless acts.
525 it, was to be foreseen at the time when he created the situa- tion, event, simply the landowner is not In that he is liable. neghgent not negligence predicated upon cannot be failure anticipate extraordinary unprecedented acts of (2d 280; others. Ed.), 49, pp. 274, Prosser on Torts § Electricity, 51; Jur., 53; C. J. S. Electricity, Eld- 18 Am. § § ridge, Culpable Cause, Superseding U. of Intervention as P. L. Rev. 121. as impossible
It is fast rule lay down a hard and to what acts of Each certainty can with foreseen. others be case is light facts, to be due decided in the own of its regard surrounding circumstances, to the not and whether or Bohlen, the subsequent and, so, act expectable. was normal however, Studies in Torts, must, the Law 504. There be some limit liability since the not an insurer landowner is of the safety of public. point This limit is the where subsequent act reasonably could not foreseen a normal be part of (2d Ed.), the risk pp. created. Prosser on Torts 274- bar, therefore, in the case at is whether at the time high it installed its tension line should have foreseen might there injury be risk of to a lawfully premises on its cutting caused wires. is, course, It necessary precise manner injury which the foreseen; occasioned must have been only injury might reasonably expected be to follow from the situation created.
Did Hercules then required take the precautions in- stalling high tension line? itDid foresee all reasonable probabilities? high The location of the tension line on the property of Hercules any pubhc road, removed from the con- struction of the line in safety accordance with the standards utility followed company, local and the fact that as in- guys absolutely stalled the were incapable becoming ener- *9 gized, think, pro- was indicating we Hercules are facts that ap- viding It is safety precautions against foreseeable risks. guard parent precautions were sufficient to that taken coming against and injury anyone coming to the location on condition. any part in contact in its installed with the line agency, it by an Unless the was outside installation disturbed perfectly for all. safe duty persons law- plaintiffs argue But that Hercules’ to con- fully changed granted an easement on its land it when proposed extension struct a knew sewer and that ar- high power It is proximity sewer line. ran in close to its gued duty Hercules to warn that it then became the guy were cut. danger could if the wires latent which arise This, however, foresight charge Hercules with the cut, anticipate guy that wires would be way heavy equip- had to be make cut to contractor’s difficulty argument is noth- ment. with the there knowledge that ing bring record to home to necessarily long place, guy wires, perfectly as in safe as pole. sup- dangling would be cut and left would foresight, brought play, would pose that if it into must be conclusion, viz., directly that no re- opposite have led to the arbitrarily in- sponsible employee of the would so contractor dangerous carrying the force terfere with an installation electricity taking steps severed at least to make the without safe, or, employee the contractor severed wires if no wires, on the scene interloper intrude himself that no would deliberately sever the wires. is to the
In view fact rarely, ever, if guys, become absent an loosened, effect that condition, provid we think an installation abnormal weather complete safety tampered discharged when ing against providing safety duty all foreseeable Hercules’ Particularly is this so when installation followed the risks. *10 local by the pattern usual followed for such installations Co., Light utility company. Heyer Jersey & Power v. Central 211,147 106 N. J. L. A. 452. to the ordinarily questions as are aware that risk, of
foreseeability particular of the reasonableness intervening cause conduct, defendant’s and whether or not an of abnormal, to the decision normal or are to be submitted jury. When, however, are not con the facts of the cause of flicting, difference and where there can be no reasonable them, upon those opinion as to the conclusion reached to be law. questions are as a matter of for decision of the court Torts, (2d Ed.), 49, p. 280; Prosser on Torts Restatement § 453, a; Power Comment v. Northern States Greenwald § Sumter, 216, City 320; 226 Minn. N. W. 2d Williams v. Inc., 375, Foundries, 321; Lehigh 149 S. C. S. E. v. Stark 1,130 338 Pa. A. 2d 123. the death opinion
In our the nature and cause of Hercules decedent was not in the sense that foreseeable was high line at the time of the tension installation hap against it provide bound in the exercise of due care to pening The decedent happen. in the manner in which it did unforeseeable met death as the result cause —the his of an dangling cutting guy leaving them wires and the grave for position injury motion to cause if Hercules’ moved. granted. verdict should therefore have been a directed unnecessary This conclusion makes it for us to consider questions presented appeals, including the other guilty of whether or the decedent con- was negligence. tributory denying judgment
The orders Hercules’ motions for in its and the are reversed cause will be favor remanded with in- judgment to enter Company. structions Powder (dissenting): J. Terry, liability arising
The issues of appeal on this are as fol- lows:
“(1) negligence Was the free from as a mat- defendant ter of law in guy the manner in wire which it constructed the high voltage to its line?
“(2) If negligent the defendant was its construction guy wire, liability it relieved of as a matter lawof because of intervening act of an unknown in cut- ting wire?
“(3) If negligent the defendant was in the construction guy wire, liability was it relieved of as a of law matter contributory negligence because of the of the decedent in grasping the loose end of the wire?” *11 majority
The relating has rendered moot the issues to intervening contributory negligence by holding cause and negligence, law, the defendant was free from as a matter of in manner which it constructed the pole. wire to the presented expert Both sides of witnesses on the particular majority relative merits of this construction. As the indicates, opinion sharp there was conflict between the testi- mony plaintiff’s experts. of and defendant’s conflict, however, majority
Heedless of this casts it- jury attempts self in the role of a to resolve issues of fact ignoring long standing —completely rule of this Court relating equity, matters not we in must confine our rulings holdings strictly try on the law. We cannot facts. Hannigan Corp., (45 Del.) Terry 593, v. Italo Petroleum 6 (1949); DuPont, 209 DuPont v. 34 77 A. 2d Del. Ch. (1954). A. 2d 234 103 majority opinion sets forth the conflict experts, it, proceeds by and then to resolve it
discusses the assertion no real conflict because the local that there is custom followed negligence it from by exonerates as a matter of defendant law. I in- ruling view that It is a noval with much concern. very novation which for has no foundation obvious reasons elementary the law cannot whatsoever. It that custom is change determining quality act; only an it can aid quality by what party is. A his own continued cannot negligence by exempt a establish custom which he is made liability, legal responsibility negligence nor miti- gated by negligent. the fact that others have been alike
The conduct of the defendant
in this case is not to be
by
by
others,
by
measured
a standard established
it or
a
but
by
standard fixed
law —that
one—
standard is an external
degree
reasonably prudent person
care
exercised
under like
To
circumstances.
follow custom
to be
shown
general,
may
uniform and notorious
be the conduct
a rea-
sonably prudent person,
may
any event,
or it
not. In
an
such
presents
issue
jury
a factual
situation for
determination.
Clark, Terry 246,
State
Delaware to
Use Henderson v.
(1941).
“The although custom of the evidential as to what industry, the reasonable standard in an does conclusively public utility establish the care a must ex performance operations. ercise Adherence to an indus necessarily try standard is not conclusive toas the issue of *12 negligence and not does of itself absolve the defendant from * * * liability. The must still use care defendant reasonable prevailing under all the circumstances and practices if industry comport standard, do the defendant may negligent notwithstanding compliance be found with in dustry v. custom.” Service & Public Elec. Gas Buecafusco 385, 140 (1958). Super. A. J. 2d 79 N. universally to me that the law so
It seems is on clear unneces- subject a further of it would be this discussion sary. relating (1), supra, my Issue
It conclusion that harm light of a foreseeable risk of proper construction question by this presents that cannot be resolved others question present state of record. Court under adequate jury under instructions. one for determination Necessity require that I set a detailed dis- does not forth (2) supra. say (3), will suffice to of Issues It cussion jury my opinion presents each issue adequate under instructions. determination Plaintiff, corporation, Delaware Company, Model Finance Defendant. Barton, B. v. William