90 P.2d 409 | Okla. | 1939
Herschel Kersh Keefer was killed by a bolt of lightning. This action for wrongful death was brought by his mother, Mrs. Johnny Keefer, as next of kin, against the Public Service Company of Oklahoma, on the theory that the death resulted from the negligence of the defendant company in failing to properly maintain its line. The trial court instructed a verdict for defendant. Plaintiff appeals, contending that the court erred in refusing to submit the question of negligence to the jury.
The evidence showed that decedent was proceeding down a section line road; that defendant company maintained and operated a high voltage line which crossed said road and was 38 feet above it; that along each side of the road there was a wire strand fence standing four or five feet above the bed of the road. Plaintiff's witnesses testified that a bolt of lightning was seen to run along defendant's line past two poles, and when it arrived over the middle of the road, midway between two poles, it flashed from the line, 75 feet away, to decedent's body, killing him instantly. In answer to a hypothetical question assuming these facts, plaintiff's expert witness testified that it indicated to him that the safety devices on defendant's line were not properly functioning. Defendant introduced evidence showing that its line was not out of repair and that it was employing all the safety devices known to the trade. No evidence, other than the fact of the happening of the tragedy, was offered by plaintiff to rebut this evidence. There was no evidence whatever that injury was likely to result from the condition of the line. All of the expert witnesses, including plaintiff's expert, testified that it was highly improbable that a heavy charge of electricity would leave a line in the middle of the span; that it was very much more probable that it would leave the line at the pole, for the reason that the guy wires on the poles and the poles themselves were better conductors than air; and if it did so leave the line into the air, it was much more likely to travel the 34 feet to the fence or the 38 feet to the ground than to travel the longer distance of 75 feet to the body of decedent. Experts also testified that lightning travels so fast that the witnesses could not have seen it traveling down the high line, as they testified they did.
1. Plaintiff relies upon the doctrine of res ipsa loquitur. Assuming, without deciding, the facts here involved are sufficient to invoke that doctrine, we will direct our inquiry to the propriety of instructing a verdict in such cases. Unquestionably, in a negligence case the burden is upon plaintiff to prove the negligence of defendant. Halbach v. Parkhill Truck Co. (1934)
We are not unmindful of the rule announced in Billington Lumber Co. v. Cheatham (1937)
We are of the opinion that defendant's evidence does so clearly rebut the inference of negligence raised by the doctrine invoked that all reasonable minds would agree in the conclusion that it was not negligent.
2. Plaintiff also contends there is sufficient direct evidence to go to the jury. Plaintiff failed to adduce any evidence of specific acts of negligence and relied upon the happening of the injury to show defendant company must have been negligent. From *96
an examination of the record, we conclude there was no evidence of negligence sufficient to go to the jury. It follows that the trial court properly instructed a verdict for the defendant. Spartan Air Craft Co. v. Jamison (1938)
Judgment affirmed.
BAYLESS, C. J., and GIBSON, DAVISON, and DANNER, JJ., concur.