12 So. 2d 527 | Miss. | 1943
Lead Opinion
On October 3, 1941, the appellant Power Company was engaged in making an extension of its electric service at a place in Rankin County. James A. Merritt, one of its *806 linemen engaged in the work at the top of one of its poles, was electrocuted by a high powered wire of 8,000 volts. The appellees, his wife and two minor children, brought this action against the Power Company and Elam, its foreman, charging that his death was caused by the negligence of the company. The trial resulted in a verdict and judgment for $20,000 against both defendants, from which they prosecute this appeal.
The grounds of liability relied on were that while Merritt was doing the work the Power Company negligently failed to de-energize the high powered wire, either by turning off a switch nearby or requiring Merritt to insulate the wire with a rubber blanket.
The assignments of error worthy of consideration are only two, that the court erred in refusing the appellants' request for a directed verdict and in refusing to grant a new trial on the ground that the verdict was excessive. We will consider the two propositions in the order stated.
The following were the facts, either proven by evidence without conflict or substantial believable evidence where there was conflict: The crew engaged in the work consisted of Elam, the foreman, and the deceased Merritt, and Ammons and Sullivan, linemen. The pole on which Merritt was at work was about twenty-five feet above ground and about six or seven inches in diameter. At the top was a high powered wire carrying 8,000 volts, below that was a neutral wire, and below that another wire not dangerous to come in contact with. And in addition there was a guy wire on which Merritt had been working which was only eight or ten inches from the high powered wire. In order to climb the pole Merritt had attached to his shoes sharp spikes, and to keep him from falling while climbing, after he reached the top or while coming down he was attached to the pole by a belt — the belt encircling him and the pole. When he had completed his work and was starting down, the spike in one of his shoes slipped out of its socket, which according to the evidence sometimes happens, causing him to dangle back in his belt and involuntarily throw up one of his hands, which came *807 in contact with the high powered line, resulting in his death. His death could have been avoided in two ways, (1) three hundred yards away there was a switch by means of which the current in the high powered wire could have been cut off without interfering with service to any of the Power Company's patrons; (2) on the ground nearby in a truck belonging to the Power Company was a rubber blanket which could have been thrown over and insulated the high powered wire while Merritt was at work. To have used that, however, it would have been necessary for him to have a helper up the pole with him. When the accident occurred the foreman Elam was standing within a few feet of the pole and the other three linemen were standing nearby. Elam as foreman had charge of all the ways and means of doing the work and the linemen under him, including Merritt, had to obey his instructions and directions. Without having the current in the high powered wire cut off at the switch or suggesting that it be done, and without instructing Merritt to use the rubber blanket, Elam directed Merritt to climb up the pole and do the work, fully aware of the danger to him from the high powered wire. The evidence showed that Merritt was a lineman of several years experience, that he was thirty-four years of age, six feet and two inches in height and weighed 180 pounds, and was in good health, and therefore with a long life expectancy for his age. He was getting a salary of $167.50 a month with overtime. He left in addition to his wife two young children, one a little less than three years old and one two months old.
The main contention of the Power Company is that Merritt's failure to either cut off the switch or use the rubber insulation himself, was the sole proximate cause of the injury. On the other hand, it is contended that it was the duty of the foreman Elam to require that one or the other be done, which Elam failed to do. As above stated, Elam required Merritt to go up the pole and do the work without suggesting or requiring either of those precautions being taken. "It is the settled law in this state that public utility corporations in handling and *808
controlling the subtle and extremely dangerous agency of electricity shall be held to the highest degree of care which skill and foresight applicable to that business can obtain." Henry v. Mississippi Power Light Co.,
In considering this question it should be kept in mind that Sections 511 and 512 of the Code of 1930 abolish contributory negligence as a defense and make negligence and contributory negligence questions for the jury to determine, and that Section 513 of the Code of 1930 abolishes the doctrine of the assumption of risks. "The risk that the servant assumes is the danger incident to the service which remains after the master has exercised reasonable care for the safety of the servant." Wilbe Lbr. Co. v. Calhoun,
The fact that Merritt involuntarily threw up the hand that came in contact with the high powered wire is no defense. Planters' Oil Mill v. Wiley,
We cannot say with a sufficient degree of confidence that the verdict was too large. The record in this case, *809
including the instructions, shows that the case was tried on the theory that either the Power Company's alleged negligence was the sole proximate cause of the injury or the negligence of Merritt was the sole proximate cause of his injury. Therefore, the language used by the court in Avent v. Tucker,
Affirmed.
Concurrence Opinion
It is no part of the servant's duty to abate dangers which are the result of the master's failure to use requisite care. The master's duty to use reasonable care to make and maintain the place of work in a reasonably safe condition is non-delegable. Reasonable care with respect to an 8,000 volt wire must of course involve a degree of care which exhausts all practical means to prevent its contact with persons, particularly servants.
There were here available two means of protection: A cut-off switch which would absolutely insure against danger, and a rubber blanket, with other insulating equipment, which was at least reasonable protection. The former was primarily under the control of appellant, the latter was readily available to appellee. The failure of appellee to use these devices was unquestionably negligence but it would be contributory negligence only if there was some initial negligence to which it could contribute. The necessity for its use was occasioned by the appellant's omission to render the wire harmless by cutting off the switch. The master may not be allowed to transfer completely to the servant the duty to guard against a condition created by its own negligence. We could not, of course, lay down a fixed rule that persons engaged in maintaining high voltage wires must de-energize them whenever their linemen are engaged in proximity thereto. Such rule would be impractical and because it is so, it is true that in most occasions requisite care is fulfilled when enlightened methods of construction have been complied with. But such impracticability does not affect the rule of requisite care. It merely takes into account the fact that the duty and the extent of protective measures must be "interpreted in the light of the attendant circumstances." *811
Supreme Instruments Corp. v. Lehr,
The master's duty to abate threatened danger is as great as his duty not to create it. If the business involves inherent dangers which remain despite requisite care, the duty to abate the danger arises whenever practical obstacles ordinarily justifying maintenance of the dangerous condition are removed. To argue that the sole responsibility was upon the servant is to say that it was his absolute duty to protect himself against a dangerous condition unnecessarily maintained by the master.
Since there is no intimation other than that appellee's contact with the deadly wire was accidental, it becomes proper to invoke the rule that a master is required so far as is reasonable, to anticipate that usual accidents, even negligence, may expose the servant to a hazard created by the master. Crosswell's Law of Electricity, Sec. 234; Hercules Powder Co. v. Williamson,
Appellants' own witnesses testified that it would have been safest to have cut off the current. Why should the master not use the safest way when there were no considerations of convenience nor necessity requiring an exception?
Griffith, J., concurs.