Mississippi Power & Light Co. v. Walters

206 improvidently appeal in this case was

The rely may granted. de a defendant Pacts on which in the answer. action, should be set out fense an up constitute are set so as to the facts Moreover, if go readily separable, plea, clearly, distinctly and and separately plea may heard be to the entire action, any party. sufficiency upon motion of law, its § 1942, Rec. 1290, Miss. Code opinions pointed heretofore have out in

We interlocutory appeals not which orders, from do controlling principles and involved, settle all delay, expense be should not do and which not avoid granted. v. et 232 Miss. 98 So. Reed, ux, 258, Martin 239 Miss. Johnson, v. 765; 2d Atwell Transfer Tax Col Winter, 124 Nash v. State So. 2d 719, 861; v. 235 109 So. 336. Cf. McMahan 330, Miss. 2d lector, Dusty Kappa Membership of Phi The Adult Boards The 693; 145 2d Clubs, Debs 245 Miss. So. etc., Company, Miss. Wilkerson, Inc., R. 246 Inc. C. Girod v. 527, 151 So. 2d 195. overruling the demurrer of the chancellor order fur- is remanded for

is affirmed and case therefore chancery proceedings in the court. ther remanded. Affirmed Gillespie, McElroy Brady, JJ.,

McGehee, J.,G. concur. al. v. Light et

Mississippi Company, Power & Walters 2 2d So. November No. 42657 February 17, 1964 160 So. 2d 908 Cheney, Ferguson, Wise, Green, Bethel Green & Smith ap- Carter, Huff, Forest, & William A. Jackson; Company. pellant, Mississippi Light & Daniel, Horton, Coker & B. Jackson; Jr., O. Triplett, Forest, for appellant, Cities Service Oil Company. appellant, Jaclcson,

Forrest B. Jackson, for Larco Drilling Company. Roy appellee. Ray, Lee, N: Forest,

Bob Jackson; J. Kyle, appeal by Mississippi

This case is before us on Pow- Light Company, corporation, er & Cities Service Oil Company, corporation, Drilling Company, and Larco partnership composed LaRue, others, I. P. Jr., judgment defendants below, in court from a of County, Mississippi, Circuit Court of Scott rendered against the above named defendants in favor W. R. of plaintiff Walters, in the court in below, the amount of damages, personal injuries alleged $25,000as for have to by plaintiff been sustained on March 14, when 1961, employee Incorporated, he, as an of Luther McGrill, was engagud removing equipment oil well from an oil Simpson County, Mississippi. well site located injuries complained The record that the shows result of an of were emanating suffered as a electric shock from power operated by an electric line owned and Missis- sippi Light Company plain- Power & aat time when the operating equipped tiff was an “A-Frame” truck poles gin proximity a and metal cable in close to the plaintiff’s line. The named in defendants (1) Mississippi declaration were as follows: Power & Light Company, corporation a hereinafter referred Company”; (2) as the “Power Cities Service Com- Oil pany, corporation a hereinafter referred to “Cities Company”; (3) Drilling Service” Company, the “Oil Larco partnership composed a of members of family LaRue hereinafter referred as “Larco”; (4) Trucking Bowman Com- Bowman, C. J. C. J. d/b/a/ plaintiff pany. During took trial the the course voluntary Bowman. nonsuit as to J. C. gas under lease

The record shows the oil and covering lease, which the oil well was drilled by Simpson County, C. M. Wells lands in executed April Company 1954, which Continental Oil on 15, Corp- assigned by Fuel been Continental to Arkansas Oil September assignment 2, 1958. oration cross dated drilling the well was The well contract under which Arkansas drilled entered into between was a contract Sep- Drilling Company Company Fuel Larco Oil 30, 1960. tember per-

Arkansas Fuel Oil obtained initial authority mit well, to be known as Wells- drill from Board on Womack No. the State Oil and Gas pro- immediately Larco October thereafter 1960; heavy hauler Bowman, cured services J. C. drilling equipment, rig haul the and other oil field machinery equipment Field, from the Gwinville Mississippi about 12 north to the well Prentiss, miles Company, which was site selected Arkansas Fuel Oil immediately public running north of a road situated east the Town of and south four or five miles northeast of approximately length Magee. site 200 feet in High-tension Mississippi and 150 feet width. lines of northerly- Light Company running in a Power & were southerly the well The lines direction across site. operated 1928, been and were and had erected in owned Company. lines defendant The consisted bearing electricity. of three wires volts of The 13,800 approximately ground, and wires were 20 feet above the point drilling selected for the were uninsulated. The only high- about 75 feet east of the well was of only of the well tension The means access to lines. public improvised roadway leading from the was an site passing under the the well site road on the west to and high-tension equipment drilling The used in lines. well and on the well of an stored site consisted oil well drilling’ great quantity heavy machinery rig of and a pipe equipment. and line operations drilling begun 5, were on November

1960. 2, On December 1960, Arkansas Fuel Oil Com- pany conveyed gas properties its oil to Cities and Service Incorporated; Reserve, and December Cities conveyed properties Service Reserve to Service Cities Company. completed Oil January The well was on or about depth

13, 1961. The well a was drilled to of producing 13,780 a feet. It was dual well oil from two permission Larco, and with horizons; of Cities Serv- rig ice, had Bowman stack disassemble and and drilling machinery equipment other and on the well lo- high-tension proximity cation under or close Company. lines of the Power completed

A few weeks after the well been Larco arrangements made with Inc., Luther for the McGill, hauling drilling equipment rig of its and new drilling Merrit, site near several miles southeast of Wells-Womack No. well; and Luther on March 10,1961, appeared began McGill’s haulers at the well site and equipment drilling to load and move the the new site appellee, Alpha in the Merrit Field. The Walters, and employees op- C. Dearman were of McGill. Walters equipped erated an A-Frame truck with a winch and hoisting loading drilling rig steel cable for equipment supplies. oil field The cable was fitted pulley top over a the A-Frame, and attached to the end cable chain, short which was wrapped securely piece to he around and fastened to the equipment picked up. which was he Dearman swamper helper and cableman who worked loading equipment. Walters in injury The accident which resulted Walters’ Do,arman’s death occurred on electrocution March undertaking Dearman were while 14, 1961, Walters equipment heavy piece drilling referred to of oil load been stored which had swivel, in the record as to high-tension when the Power under the lines of January. by drilling rig Bowman was disassembled approximately long, The feet swivel was feet or 8% pounds. approximately weighed 4,000 3 feet wide, and attempting lift the swivel and Dearman were Walters operated place being it on a which was truck on the A-Frame truck was Hubert Edwards. Walters’ poles power tops gin west The of the side of lines. approximately 19 feet from on the A-Frame truck were testimony, ground; according Wal- and, Walters’ the swivel and ters the A-Frame truck toward backed stopped truck with his under Dearman’s direction poles gin 4 feet feet or airbrakes when the were 3% power right hand from the westernmost line. Walters’ of the winch Dearman had hold airbrake. pulled line the winch line toward and hook. Dearman him it that he could unwind from the winch drum so the cable around hook the chain attached to the end pulled the swivel. Dearman the winch line toward When electricity passed him from the third time a current of both workmen. Hubert lines into the bodies of Edwards, who was seated in the cab of his truck about gin pole from heard an or 50 feet Walters’ truck, outcry immediately acci- and went to the scene lying ground dent. He on the six found Dearman or eight inches from the swivel. had fallen Walters ground were carried outside of his truck. Both men hospital immediately. dead when Dearman was hospital. the ambulance arrived plaintiff against the above declaration filed his stating After named defendants on 1961. June plaintiff charged that each above, facts as outlined ordinary knew, the exercise of the defendants drilling rig oil well known, care have should heavy machinery equipment being and were other and n proximity disassembled under and in close and stacked Company’s high-tension to the Power that the lines; ordinary in the knew, defendants or exercise of care removing lifting- should have heavy machinery in and the known, proxi- equipment and under in close mity high-tension long cranes, the lines’ and booms gin poles required would be be and used. would plaintiff alleged further that each care, the defendants, of in ordinary of exercise should have foreseen and anticipated plaintiff danger of electrocution to which the working proxi-

and others in under close and mity high-tension subjected to the lines would be while engaged removing heavy machinery equip- in and ment from the oil well and that each location; of carelessly negligently defendants had failed and to have carelessly negli- a caution order force, and had and gently place safety failed to and make available a man danger against to warn the work-men of electrocu- tion. specific charges negligence against

Other of were made respectively, the several defendants, as follows: (1) Company That the defendant Power was under duty highest degree use of care in construct- ing, maintaining operating high-tension and its lines safetjr plaintiff over the well oil area for and working proximity while others in close who, to the high-tension might wires, come in with wires; contact grossly negli- the defendant Power gent maintaining high-tension charged its lines electricity 14,000 volts too low the oil over well lo- safety persons engaged cation in disassembl- ing, stacking removing drilling rig and and other machinery equipment; oil well the defendant Company, in the exercise reasonable care, anticipated danger should have foreseen and plaintiff working around, electrocution and others proximity high-tension under and in close its lines, height to a should have raised its lines safe plaintiff injury to avoid and other workmen en- gaged stacking disassembling, removing drill- rig heavy machinery equipment ing and other under proximity high-tension in and close to the and wires; Company negligently that the defendant Power failed high-tension height to provide its lines to a to raise sufficient plaintiff safety reasonable for the other and persons working proximity under and in close to the high-tension lines.

(2) Company That the defendant Cities Service Oil negligently designated drilling had selected and for the highly dangerous of the oil awell location in close too proximity high-tension to the wires of the Power Com- pany; procured negligently and of the had services highly defendant drill the' well Larco on such dan- to gerous location when in knew, it the exercise it be- reasonable care have that would known, should necessary drilling company come to assemble heavy machinery equipment at the well for the site and upon drilling well, of the and disassemble the same to completion drilling, operations, close of the in such proximity high-tension highly lines as to be dan- to gerous engaged performance such to workmen in the services. Company,

(3) Drilling That the defendant Larco upon completion negli- drilling operations, gently caused the C. Bowman disassemble defendant J. machinery heavy and and stack the derrick and other operation equipment drilling under and used neg- proximity high-tension and had lines, to the close ligently arrangements McGill, Inc., made with Luther machinery away heavy equip- load haul and proximity thus stacked under and in close ment high-tension lines.

(4) negligent- That the defendant C. Bowman had J. ly drilling' rig other disassembled and stacked heavy machinery equipment under and in close proximity high-tension to the lines.

In its answer the defendant denied plain- charges negligence against all it in made tiff’s The likewise. declaration. other defendants did

As Pow- matters the defendant defense, of affirmative plaintiff’s Company alleged er in its answer that injury upon way right it and occurred owned upon prop- system which it had erected its transmission erly thereby that it not it had fault; so continuously high-tension safe maintained its lines right trespass one thereon. manner; and no had a duty plaintiff any defendant denied it owed to duty trespasser; other than such as it owed high-tension the defendant averred that its were lines height. alleged a constructed at that the safe The defendant plaintiff helper, Alpha truck and driver his C. employed by were Dearman, independent Inc., an McGill, Luther physical contractor, of who was the advised obtaining plaintiff conditions at the well site; that engaged joint enterprise op- and Dearman were in in erating poles gin equipment the truck with the at- and tached, around the oil well location where accident doing brought machinery and occurred, in so their and equipment eight Company’s within feet of high-tension through lines, in violation of Section 7015-11 Supp., 7015-19, Section Miss. of 1942, Rec., Code negligent part and that the brought action on the the two of question. workmen about the accident in alleged plaintiff defendant further that been had danger upon operation warned of attendant in engaged which he was at the time of the accident and voluntarily any perform- assumed risk which existed in ing performing the acts which he was at time of injury. his Company an- in its

The defendant Cities Service Oil rights Fuel Oil of the Arkansas swer admitted Company drilling in the contract entered into September Cities transferred to Larco had been Company; in its Service but the defendant averred Oil rights been transferred Cities answer that its had January Company and 1, 1961, Petroleum of Service as been Petroleum Cities Service January operator 1961, its of the well since that Dearman owners. The averred defendant also only licensees Luther were McGill, Inc., Walters and duty (cid:127)the well site to whom owed no Cities Service trespasser. except duty whatsoever owed to answer denied The defendant Bowman in J. C. his Simp- activity engaged any that he was business or County that he 14, 1961, son on or about March guilty any neglig'ence of which contributed whatsoever plaintiff’s injury. LaRue members

The defendants I. P. other Company partnership Drilling with their the Larco filed change the First answer for the of venue to a motion County, grounds alleging Judicial District of as Hinds they doing business as therefor that were individuals partnership, they all and residents were adults City in the First District Jackson Judicial County, individuals, virtue of Hinds they provisions Miss. Code of Sections 1433-34, only county were suable within the district of their motion and residence. The court domicile overruled change of venue. for a the

The case was tried the March 1962 term of at testimony of At the conclusion of the rebuttal court. plaintiff’s plaintiff re- witness, Gill, the William the quested permission paragraph dec- to amend 5-B of his proof, charge that laration to conform to the so as Company its lines the Power have insulated should placed and location, over the oil well and should have well, safety a man the site while the maintained at oil equipment being safety well for was removed the of plaintiff employees. Objection the other was and made n granting the the but amend, of motion the ob- jection proposed overruled, and the amendment all of allowed. At the conclusion the evidence of plaintiff voluntary a as to the took defend- nonsuit requested ant Bowman. Each of defendants the other requested an for a instruction directed verdict. The instructions for a directed were refused, verdict jury case was a submitted of for determination presented by pleadings. jury the issues The re- plaintiff against turned verdict for the the three de- Company fendants for the sum of $25,000. The Power thereupon notwithstanding judgment filed a motion for judgment verdict. motion was overruled, and plaintiff against was then entered for the the defendants Company, Power amount Cities Service, and Larco for

stated the verdict. Each of the defendants for a filed motion new trial, and those motions were judgment against overruled. From entered them prosecuted appeal. the three have defendants this appellants grounds separate assignments The three have filed judgment of error as for reversal the lower court. points assigned argued

The main behalf on appellant Company grounds Power reversal against judgment Company (1) the are: refusing grant peremptory That court erred requested by Company instruction the Power (2) close of all of the evidence; the court overruling appellant’s judgment erred in motion for notwithstanding points assigned the verdict. Other argued (a) behalf the Power That are: allowing court erred certain amendments to be plaintiff’s (b) made to the declaration; the court permitting erred in the cross-examination of Bethel Ferguson, attorney Company, claims of the Power oii privileged (c) ruling matters; that court in its the erred plaintiff’s qualified that the witness, H. M. Dennis, was testify expert (d) electrician; to as an and the amount of the verdict is so excessive as evince bias to prejudice part jury, judgment and on the the and the granted should be set and a trial aside new for that reason. points assigned argued

The main and behalf of on appellant, Company, grounds the Cities Service as Oil judgment against (1) for reversal of the That it, are: appellant proper party was not a suit, and granted peremptory the court should have instruc- requested by appellant (2) tion for that reason; appellant proper party that, if the was a the suit higher duty appellee it owed no to the than to refrain injury from willful and wanton there him, and injury. points assigned evidence of no such The main argued appellant Drilling behalf of the on Larco grounds judgment against for reversal of the ap- (1) overruling it are: That the court erred pellant’s change the time motion for venue filed at appellant’s (2) filing of the answer; grant peremptory refusing the court erred requested by appellant instruction the conclusion all of the evidence. It is on behalf also contended appellants of each of the Larco that Cities Service and upon the amount of the verdict, facts disclosed grossly shock the record, was excessive so as to part prejudice conscience and evince bias and jury, judgment for that reason should granted. be reversed new trial readily assignments It can be seen from the of error questions presented above the main for our noted appeal trial decision on relate to action of the this appellants’ requested refusing grant court in in- 230 three of the as to each verdict for a directed

structions appellants. long decisions a line of held in

This has Court question determining not whether or that, the evidence appellant verdict, a entitled to directed was every proving to fact favorable be must treated directly or appellee’s either which it established case (1925), 139 by v. Brannon Dean reasonable inference. Mississippi Bourgeois School v. 312, 175; 104 Miss. So. (1924), Supply 209; 155 Stricklin 310, 170 So. Co. Miss. Harvey, Fondren, Kurn v. 606, 345; 181 179 So. v. Miss. 205 Dumont, 727; Bankston v. 739, 189 Miss. 198 So. Flying Canton v. 272, 721; Miss. 38 2d Johnston So. The same rule 46 2d 533. Services, 226, 209 Miss. So. applies judgment notwithstanding the a a motion to (1957), Power Ass’n. Electric Grice v. Central verdict. v. Green 909; 2d 230 Miss. 92 So. 2d So. (1962), 211. 244 Miss. Railroad Co. Mobile & Gulf, 141 Ohio necessary give that we therefore 216. It is So. 2d jury testimony upon summary which the a brief based its verdict. of- a record. The evidence

The record four-volume is liability legal plaintiff to establish fered on behalf of complained injury part of the defendants for on may be summarized as follows: pusher, who Larco’s foreman tool Harris, A. J. plain testify as an adverse was called witness to testify to as witness the was later1 tiff, recalled who arrange testified that he made defendants, for the brought drilling- rig be the Wells for the to ment Clyde drilling 1960; No. site October Womack Company, representative Fuel of Arkansas Oil Stour, pointed accompanied him out him the site and place Harris to be where the well was drilled. arrangements with Bowman he then made stated equipment Field from the Gwinville move approximately Simpson County, 12 miles north of Pren- Magee; drilling tiss, the new well site near operations begun were around the first of November, completed January well and the Lareo' 13, 1961. drilling used conventional derrick in the well which high. about 167 feet The area covered the der- reck floor was x30 30 feet. Harris that there stated public running Magee was a road from to the Wells- approximately Womack well site and within 200 feet point pipe put ground; the where the well in the power way and MP&L’s line was about half between producing public the oil well and the road. He knew high-powered that the line was a line but he did not high. know how

Harris that stated when the well he was finished machinery equip- instructed Bowman to take the and apart drilling ment it and set down on the location away out from the well Bowman site. disassembled machinery equipment put the and and it where he was put put light high told power it. to He the stuff under the drilling lines which ran across the west half of the put machinery equipment and he location, the close high power largest piece machinery to the lines. The weighed pounds. 75,000 about arrangements

Harris that he stated made with Luther during McGill, Inc., the second week in move March, to drilling rig equipment Magee the from the Field Field; to the Merrit and on March 10 he Luther called telephone gave McGill’s office Laurel on the dispatcher moving McGill’s truck about instructions equipment. dispatcher He told McGill’s truck that a high-tension working line crossed the area extreme equip- moving caution would have to be taken in dispatcher ment, and the truck should inform the truck they yard. drivers of that fact before left the Harris that stated he was at the well site when Gill, William pusher, McGill’s truck arrived at well site the next morning and he told Gill warn his hands about

power them caution there, that were and to lines get Two the trucks lines. be careful and not let into he time, and about trucks arrived at the location power Harris lines. the drivers about cautioned 7 or 7:30 was at the well site around he stated morning well site but he left the occurred, accident go at the and he was not thereafter, Merrit soon injured. plaintiff was time the well site at the by Ferguson identified Bethel who had been representative attorney Company’s as the per- and had been in the trial of the case, witnesses while mitted to remain the courtroom other testify being called as an examined, were was also plaintiff. Ferguson stated witness adverse on March he went to the scene of the accident equip- day occurred, and he saw after the accident lines. which was stacked under ment drilling general truck. The swivel was on the bed of a appeared feet. There was area to be about 150 the electric wires. cross-examina- insulation on On no attorney Ferguson by that stated Larco, tion Company’s man- was the Power division J. W. Cavin manager ager Robbins was the local Jackson, and E. O. Magee. to in the record Robbins, elsewhere referred at as

“Rip person was the who went with Robinson”, him where him the and showed to scene accident Fergu- place He familiar with the area. was. was photographs well site, son identified three the oil attorney. were in evidence Larco’s which offered who was the well when Edwards, Hubert site Wal- at employed by injured, that ters was he was testified Luther truck driver at the time the accident McGill as eight job. ten workmen There were occurred.. drilling rig location, all over The was scattered the well necessary workmen for him the other and it was pass to side of the area to under the wires from one power was told be cautious of He other. lines, was and he realized that the situation out there dangerous. present that Edwards stated he was when injured and killed Walters was Dearman was around sitting’ alongside A. o’clock M. His truck was power gin pole right line and truck was Walters’ behind facing gin pole it west, with the back the truck and power up facing the line. Walters had hacked toward pick up thing line swivel. The first that attracted Edwards’ attention was that Walters hollered. immediately, Edwards went toward truck hut Walters’ got ground. before he himto Walters fell to the Dear- lying ground man was on the beside the swivel. Walters’ got truck did not move from the time Edwards out of pole gin approximately truck. The was 3 or 4 feet his high-tension from the line. Edwards stated that as general permit rule the would not the work- drag equipment ground, men to on the as around hut far as he knew no drag one told the men not op- swivel. Edwards stated knew how that Walters type operating, erate the of truck that he he knew that the electric current on burn or kill one the line was liable came

who in contact it. plaintiff, Walters, W. R. testified he was years employed old; that he had been Luther years; working- McGill, Inc., for that he had been 6% drilling- job Magee days on Larco’s four loading injured. a out truck at the he time was McGill’s dangerous, foreman had him told the wires were stayed away he and the other workmen far as they unwilling from the wires If could. he had been dangerous to work situation, he would have poles been fired. The A-Frame his on truck extended ground. passed about 18 feet above the He had under power day lines that with his truck two or three why length times. was Walters asked he had the of lifting his A-Frame when extended he was the swivel. only thing- His answer that the was that he and Dear- equipment high man there was to raise the could do pole enough, get would it and a short truck, on the to up enough high them to raise the swivel not have enabled loading equipment get He it on the truck. was way required he load it. Walters in the that was time of that truck was headed west his at stated the accident. He up point where backed had the wire. A-Frame within three four feet of was or through glass; keeping’ a hack He was lookout pulled stop, brought truck Dearman when he his to a right his winch to hitch it the swivel. Walters’ line Dear- hand on the brake of the truck at time. pulled he times, man the winch line three and after pulled swivel, time he back to the third started it everything “and went black.” then everything went black for Walters that after stated day. anything the next He him did know until he not Hospital Magee to the and re- was carried General days. three to the there He was then carried mained Hospital. He remained there three Laurel General days, Dr. He was later four attended Bass. neurosurg’eon, by Dr. Neil Walter of Jackson, examined and a Willey days the trial Dr. L. few before W. shock burned Walters stated the electrical Forest. right his had not re- forearm, hand he still strength right his and arm the his hand covered time the trial. He had also continuous throb- suffered bing as a shock. He headaches result of electrical extremely experienced had become nervous and had money ability partial hearing. loss His to earn seriously impaired. been that he did

On cross-examination Walters not stated any He with his A-Frame. touch lines that most of there was someone at stated the time exactly him what to do well tell and Dearman site that at load, and what to but no one was there do admitted time accident occurred. He 235 ground swivel could have off of the been raised a foot and moved forward four or five feet. Walters stated only thing grade that he a sixth and the education, had ‘‘they you electricity he knew about was that tell it will you.” kill M. at Dennis,

H. an electrical contractor who lived County, an Forest Scott testified that he been had period years, although for a he electrician 27 college experience had no he education, had wide practical as a electrician. Dennis that testified electrici- ty unpredictable was an it that react element; would way today way depending one and another tomorrow, upon atmospheric that conditions; and other it not was necessary charged electricity for a wire with come object in direct contact with metal order for pass electric current to from the wire to the ob- metal ject; higher that the current would arc across; and the voltage, jump. the farther it would Dennis stated charged electricity that if a line 13,800 volts of object, particularly came within 4 of a feet metal electricity 3% opinion an truck, A-Frame on a his jump pole, would are or from the line to the over if it came in contact with the metal it would leave object mark the wire the metal it arced or on that opinion electricity Dennis was of to. which injured plaintiff electricity killed Dearman gin pole which arced across the wires to the pole. gin metal cable attached testify Several witnesses were called to on behalf of the defendants.

J. B. Currie testified he lived on the 40-acre adjoining tract of land on which the acres oil during well was located. He had lived there the last years, and had cultivated the land in around power during* line the two forties across time. just line trial time of the it was like

when But he moved when the there. owners of op- preparing drilling well were the bed for

oil lease changes they the surface of the erations some in made by right putting well; the was fill where well .site drilled.;, n by plaintiff’s attor- the cross-examination On put ney fill was Currie stated that the which raised (cid:127) where well was drilled the elevation of the the land electric about feet. stated that he obtained Currie 3% employees power Company’s the came from and MP&L, they meter; home a. month check the to his passed rig’ht once when the the well site could see and put up it was and when taken down derrick was away. equipment being when the was moved taken elapsed He months between the stated about four drilling rig the time it was time the was installed and away in moved 1961. March

Clyde Anthony, engineer, employ- civil had been who Company approximately years, by the ed Power tes- September 28, tified that he the well site went to on topograph took notes to field show the well and with aid of Mr. location, oil Jack place he Mashburn where the accident oc- located By surveyor’s curred. use of transit he was able position ground from on observe his marks points the wires which indicated contact on poles gin with the wires. He burns all found three wires. measurements made The were about 10:50 temperature 87° The F. The A.M. distance from ground the-lowest wire was the surface 19.6 later back on At feet. He went October 1961. 6:00 temperature A.M. the was 62.96° from P. distance ground wire, to the lowest which was the west was 20.3 feet. The center wire was 20.8 feet wire, ground, the east was 20.4 feet from the wire from 4-solid.copper, carrying ground. were No. The wires voltage of volts. On cross-examination 13,800- Anthony Rip attorney plaintiff’s Robinson, stated Company manager Magee, for the the local present when the also measurement was made of height Anthony- ground. of the wires above the experienced electricity if a man that, admitted had supervise been stationed there and Dear- Walters might prevented. man, have accident been He stated patrolled periodically. lines were He Company not did knew whether the knew that an oil being well was drilled out there. He admitted that the lines have could been raised if the know- ledge of the condition which existed. Company

Jack who for Mashburn, worked the Power man Jackson, service out of that testified he went September Clyde to oil well site on 28, 1961, with Anthony Ferguson and Bethel and Mr. Shelton Polk, by operating completely a truck, bucket which was up power he insulated, raised himself lines so to pitting that he could examine the wires. He found on jury all three of wires. Mashburn exhibited to the length concerning gap and testified at devices used power companies prevent arcing when are wires by lightening. opinion struck Mashburn that stated in his physically possible electricity it was not for arc over engineer distance of feet. Gaddis, a John civil 3% private engaged practice, testified that he went to request well oil site on October at of Company, engineer the chief of the Power and with of assistance Mr. Shelton M. Polk and N. Grace, Company’s the Power service man who out of worked Magee, made measurements of the of elevation the wires points pit on the wires where marks or burns could be seen. The elevation of two wires were found be 20.3 feet each. The elevation of the middle wire temperature degrees was 20.8 feet. The air was 60.5 Fahrenheit. employed by Smith,

D. K. who had been the Power years, 35 for testified that he oil visited particular well that the 5, 1961; site on October circuit which, under his had been located well was oil period during supervision that 1951; that from 1945 parcel on which the oil well of time of land oil when he visited the cornfield; located was changes had he that well found site in October purpose ground for been made in surface of locating that there were testified the oil well. Smith recogniz- generally which were standards of construction industry throughout ed followed in the electrical of construction that such standards States; United Safety Code, in the National Electrical were set forth published by Department Bureau Commerce, the U. S. prescribed that clearance the basic Standards; Safety terrain which the National Electrical Code for traffic was feet clearance accessible to vehicular degrees it was Fahrenheit. Smith stated at 60 industry customary com- not panies in the electrical voltage carried of 13.8 insulate wires which K.y. electricity would He volts 13,800 stated maximum that such feet; not arc distance 3% voltage would arc would be less than one On inch. that at the admitted the wires cross-examination Smith fee” oil have been “for a well location could elevated have a cost”. or the wires could been insulated “for Company that certain He stated under conditions placed a out there the lines have man to observe could with make one came contact sure no them. pusher truck or fore- Gill, Luther McGill’s William testify plain- as a for the who was called man, witness present he at the rebuttal, was not tiff in testified that injured; during but well at the time Walters was site day occurred, the accident the afternoon of March top distance from the measurements of the he made operating poles gin was truck which of the Walters ground He found the distance was feet. to the places pit the end smoked burns or three or four poles again inspected gin poles. the next He of the day any and conld not find burns. He knew that there high-powered was line location; across oil well he warned Walters and Dearman about danger. argued appellant

It is first on behalf of the Power Company admitting the court erred the testi- mony plaintiff’s witness, Dennis, H. M. elec- an opinion trical contractor, that in who testified elec- his tricity unpredictable was an and it not element, was necessary charged electricity for a with wire come object into direct contact with a metal in order for the pass current them; between that an electric current piece would arc from across one of metal to another. argued testimony is It of the witness Dennis disregarded entirely should be for the reason that it physically impossible electricity to arc 3% testimony 4 feet, as witness, testified and with the of Dennis eliminated there is no basis for the verdict in the case. think

We there is no merit in that contention. pole gin Whether the the metal or cable came electricity contact with the electric or wires, whether the jumped power gin arced or from the line over pole primary metal or is not matter of cable, im portance undisputed in this case. It is that Walters injured and Dearman was killed as the result of complained plaintiff’s the electric shock of in dec electricity laration; and whether the which entered Wal body by arcing ters’ him reached from the Com pany’s high-tension gin pole wires to cable, or or gin pole a result of direct contact of cable liability line, of the Power City Rogers Chattanooga would be same. v. of (1954), App. 4-County 39 176, 281 2d 504; Tenn. S.W. Clardy, (1934), Power Electric Association v. 221 Miss. 2d 403, 144; 73 Fairbairn v. American River Electric So. (1918), 179 P. 157, 637; Co. Cal. 175 Gas Southwestern

240 App.), (1934 Tex. Civ.

& Electric Co. v. Hutchins S. W. 2d 1085. Company argued Power

It next behalf of the is on Company’s power line built-in that February 13.8 K.V. right pursuant to a valid 1928,

and March of plain- way agreement that the landowner; of from the in his tiff the time the accident which resulted of property, injury, trespasser upon Company’s was a Company only duty plaintiff by the and the owed to the wantonly injure wilfully after dis- was not to him peril; appellant’s position covering his of at- torneys support in of their contention cited point Co. the cases of McDonald v. Wilmut Gas & Oil (1937), 180 395, Miss. 176 So. and Boberts v. Mis- Light sissippi Company, 193 Miss. So. Power & 2d 542. that contention,

But think is no merit in we there opinion, of the cases our above, and neither cited any presented of our de- is decisive issues for & appeal. In the Com- cision on this Wilmut Gas Oil pany grant the owner an ox obtained an oral case of parcel right pasture a from a tenant of an ox on a swampy an of The was uncovered land. ox drowned pipe pipe in which a line had laid line ditch been right way of the Oil which across owned of the ox knew the condition the land. The owner pastured he ox on the land. The the ditch before simply that the owner of the ox assumed court risk held being injured only the animal and had himself being’ blame the ox drowned in uncovered to pipe highway a line ditch. In Boberts case state employee coming result was electrocuted using long drilling- line while with the contact highway along proposed auger route, make tests oil auger in contact an uninsulated came when power ground on from the feet line about open way through Company’s right cultivated an

241 Company that the Power had field. The court held presence right employee’s knowledge on the no of employee’s way death. of not liable for the and was correctly that not the case was decided Whether or controlling is not here. decision rendered injury in here The the case that we have did Company’s way right Power of over not on the occur Mississippi open & field, an v. Roberts Light supra, producing but the well site of a Co., high plainly public a oil which was visible from well, way rig heavy drilling other oil on which a equipment been men been at well located and had ample period is work for of several weeks. There a support jury’s finding in the a that evidence record to of rea the Power or the exercise knew, dangerous situa care, sonable have known of the should a tion which existed the well site as result at Company’s of its uninsulated continued maintenance high-tension were site, well where men wires over the ground. height only a above the at feet work, Electricity, pp. C.J.S.,

In is said: Sec. it 580-583, place maintaining them electric must so “One wires any guard against contact nature, as to direct anticipated. ordinarily might When that be indirect, necessarily premises occupied high voltage wires per- beings occupied by be human also have to duty becomes work, a it formance of lawful point company where remove such wires to electric likely contact beings to come will not be the human * * * company electric maintains with them. Where height cause reasonable it has no wires at such a proxi- dangerous people anticipate will come in negligence chargeable mity them, it is not degree proper higher. place failing them against injury precaution from requires greater care likely persons placed are wires when so electric therewith, points to come in contact than at more isolated persons expected to which not are resort. to duty exercising every place “The of care extends to persons right where have a to be, whether for business, pleasure, convenience, or and extends those on the premises of consumers, and it makes that no difference injury private property the occurred on and not in public highway person injured if the animal or right private property. to be on fact such The mere may that there be no contract relation the between parties change principle.” does not this Appalachian

In case the of Smith v. Electric Power (1935), App., Co. 4th Cir. Crt. of 74 P. 647, 2d duty contended it no care to owed of injured employees operator foreman or other of the question hig*hvoltage of Perris wheel in because though protected only by ordinary wire, in- weather originally was safe sulation, dangerous when installed, any, by situation, if caused sub- was sequent location of the Perris wheel near the wire. opinion But the in Court its said: principle know of “We no of law which entitles operator dangerous merely owner and of electric wires, prior occupation, may virtue of to insist that it con- tinue maintain its wires in the same condition if activity threatening remote from human harm regardless chang-es premises one, no in the made subsequent rightful occupants. contrary, On the same contention defendant now has makes been * * rejected by the in a number courts of decided cases *. applied

“We are accord with the rule in these opinion decisions, are thus electric an company, maintaining private property, its wires on is occupants, bound to exercise due care when other rightful premises, normal and use erect struc- proximity persons lines, tures in the event that its rightfully in, or about such for work, structures on,

243 placed thereby pleasure, in a situation are business, or danger, company with reasonable knows, danger. diligence ought know, Light Walpole & Power Tennessee In the case of v. App. Company (1935), 2d Tenn. S.W. company against electric for an an which action personal injuries alleged damages been to have plaintiff pipe which the received when an iron lifting from a came contact with defend- well into high-tension from ants’ wires 23 feet and inch question ground that the well, held over Court only placing high-tension 23 wires whether the ground at site 1 inch from the the well feet and negligence prop- jury question was a for the opinion erly jury. The in its submitted to Court “ required degree care of one case said: ‘The electricity depends dangerous agency handling being- upon danger slight current, from care persons injure the current would not sufficient where hig’hest and the care contact, with whom it came in necessary being fatal current would be where the high-tension wire in in the case of a life, human Valley dangerous position.’ & Wenatchee Gas Card v. 1047, 343; 137 20 564, Electric 77 Wash. P. C.J. Co., Railway Kartright, Memphis Tenn. 110 Co. v. Street Rep. Rail- 277, 807; 100 Am. Nashville 719, 75 S.W. St. way App. Light 367; Tenn. Bristol White, & Co. v. 7 Civ. Telephone 511, 525, 146 Tenn. 243 Weaver, Co. v. S.W. 299.” liability principal determining of a basis for injuries resulting- company from contact for be- machinery a

tween its and crane other movable wires or foreseeability might arising- which situation is the reasonably prudent person injuries. If lead such anticipated position should have of the defendant danger the defendant installations, from its to others Company, may Anno: Electric Power be held liable. See 244

Liability, 93, 104, 69 2d. A.L.R. and cases cited. This though is even exact situation caused the so injury may reasonably not have been Lozano foreseeable. (1945), App. v. Pacific &Gas Electric Co. 70 Cal. 2d 5(e); 161 P. 415, 2d infra, Delta Electric 74, Sec. Power (1961), Association v. et 209, 126 Burton 240 al. Miss. So. Many 2d 258. courts have held that where the circum probability danger per are stances such that the having right sons be an near electric line is reason ably power company, may foreseeable, a be held liable injury resulting death from contact between such a line and a crane or other movable Anno. machine. Rogers Chattanooga (1954), 69 A.L.R. 104; 2d v. 39 App. Kingsport Tenn. 176, 281 2d 504; S.W. Utilities (1955), v. Inc. Brown 201 393, Tenn. S.W. 2d (1962), 87; A.L.R. 2d v. Alabama Co. Smith 273 Ala. 509, 142 2d 228; So. v. Grice Central Electric (1957), Power Association 837; Miss. 92 So. 2d Galloway Singing (Miss. v. River Power Inc., Ass’n., 1963), 152 So. 710. 2d supra,

In Delta Electric Power Ass’n. Burton, al., v. et plaintiff’s injuries wife had received fatal from an resulting pole electric shock when a television antenna holding high she voltage was came in contact with a distribution line of the defendant Power A Association. judgment surviving was rendered in favor of the hus- affirming band and children; and this in Court, judgment against ap- the Power Association direct peal legal liability, reversing on the issue but and remanding appeal the case on cross for a new trial on damages only, opinion the issue of proof in its said: “The any dispute, jury showed almost without justified finding, was in that the maintenance of the power opinion in this lines case In our was unsafe. jury fully justified finding appellant was in that charged foreseeing- injury was with that some would probably result from the maintenance lines they rule in instance. The were is. maintained this liability neglii charged with settled that one well liability particular injury escape gence cannot because a reasonably injury ought foreseen, not be if some could anticipated. Tel. Co. Cumberland & Tel. have been Four-County 99 Miss. 890. Cf. Woodham, v. So. Clardy, supra, and v. Electric Power Ass’n. Southern Denson, Electric Power Assn. Miss. Pine v. Galloway Singing River Electric 2d 859.” In v. 57 So. supra, reaffirmed Association, Inc., the Court principle Electric Power Ass’n. in the Delta stated charged negligence with is not relieved case, that one liability particular injury fore not be because could ought reasonably injury to have been seen, if some anticipated. Rogers Chattanooga, supra, a

In v. verdict directed held was re- error, for the defendant was case that manded for a new the record showed trial, where plaintiff’s guiding decedent electrocuted while suspended beam from boom of when steel a crane proximity close the crane came in contact or city’s feet wire, the defendant which was 27 from ample ground. held that court there evidence jury might which the have found from defend- height maintaining the wire at that in- in an ant, reasonably peo- area, have forseen dustrial should ple working be the wire would near under machinery question might similar to the crane come city particularly wire, contact with the since the so permit original building, build issued to build annex an another which was annex, build when the lost his life. under construction decedent supra, Kingsport (1955), Utilities, Inc., In v. Brown negligence question an the Court held that company power properly submitted to electric heavy by employees jury the owner of in an action machinery being the cable crane, moved which of which or arced came in contact with the defendant’s strung poles uninsulated electric line on 25 feet alley, above the surface of an as a result of which the plaintiffs electric suffered shock burns, where it appeared expanding that the an area involved was busi- machinery ness section in which the use of with tall booms was not uncommon. Company supra,

In (1962), Alabama Power v. Smith complaint charging negligence held Court part company maintaining high of the electric voltage uninsulated wires above the roof of a school wing being causing the death of a contrac- constructed, employee tor’s lifting when the cable of the crane con- poured crete be on the roof came in contact with company charging knowledge wires, that the being proximity that the construction was done in close to the wires and that workmen on the construction project proximity were in close wires, to the stated opinion cause of action. In its in that case the Court said: “For the reasons we have undertaken show, opinion jury we are could infer that Company, the Power exercise care commensurate anticipate with the circumstances, was bound probable danger to workmen from the wires over the injured, duty roof where Smith was on and that this rested power company though even had no it actual notice that a crane would be used.” appellant’s attorneys say, however, that even if the every evidence this proving case is treated as appellee’s fact favorable to the case which is established directly proof either reasonable inference, negligence part was insufficient to show on the because of its failure to insulate its high-tension lines or because of its failure elevate its lines over the oil well location, for the reason that proof showed that the lines were constructed in conformity requirements full with the of the National

247 been, approved Safety Code, which Electrical Mississippi by Public the the construction standard of basic clear Commission; that the wires had a Service approximately the minimum 20 which was feet, ance of Safety prescribed height Electrical Code National the traffic; and for terrain accessible vehicular requirement Safety in Code that dis there was no the which be under tribution lines insulated conditions prevailed appellant’s at And the at the oil well site. point support torneys on that cite contention in of their Company of Tullier Utilities the cases v. Gulf States (Dist. Supp. 1963), v. and Reed La. 212 613, Ct. Fd. Company (1946), Duquesne Light 2d 47 A. Pa. 136. court in each those cases

But decision of the entirely upon unlike the of facts was based state In the Tullier case that we have facts here. that a billboard maintenance case record showed injured metal ladder crew member was when a held power company’s high voltage wire him touched passed height com- of 32 feet. The which overhead at a plainant there, were admitted that he knew wires paid “just them.” The Court held but no attention to causing negligence in- this accident complainant’s juries complained demands of, and Duquense Light In Reed were therefore denied. v. plaintiff’s Company the record showed that case employee Bridge American an Com- decedent was May high-tension pany, 1943. The who was killed on by case had been installed involved lines Light May Company property over the Bridge for its from the latter and on orders Bridge were installed the Com- service. When lines specified they pany run as over which were land ground was waste as indeed it was. an inactive area any building erected or structure of kind land no high-tension any purpose. The unused for thereon and poles height lines of 36 were feet above elevated ground. plaintiff’s by the The decedent was killed elec- May helping 29, 1943, trocution on telephone poles while remove some lying ground

which were the close in on proximity power to the lines. The which was crane being removing' telephone poles in the used the property Bridge of the the control under employees. suggestion of the There was that its no Light Company knowledge being had of-the actual use by Bridge Company lying made the of its land under- power neath the line at the the time fatal accident oc- simply curred. The Court held that the facts in fictionally imputing case afforded basis “no Light Company danger by notice of created ’’ cranes. appellant’s power that fact in lines approximately this case a basic had clearance of plaintiff’s injury, feet at the time of the which was height prescribed by the National Elec ^minimum Safety trical Code for terrain accessible to vehicular opinion, necessarily traffic, not, did in our indicate that placed company the lines were that the would have so anticipate people working no reasonable cause to that proxi dangerous near or under the wires would come in mity compliance to them. with Proof of the standards by Safety furnished the National Electrical Code was question not conclusive on of due care the Power Company. may negligence though Actionable exist even utility complied requirements involved has with the Safety of the Code. Galloway Singing

In v. River Electric Power Associa- supra, utility’s this tion, Inc., Court held com- pliance safety requirements with the minimum Safety respect power National Electrical Code with charge negligence per lines compliance it relieves of of se, but question is not conclusive on the of due care particular justify finding when the circumstances opinion the Court that case In its lack of due care. Safety contains Code Electrical “The National said: princi- guiding requirements constitutes minimum ples electric maintenance of construction question It is conclusive on lines. not safety utility. Compliance code with the care due ap- question If care. on of due is a relevant fact pellee require- comply the minimum with failed Safety it would Code National Electrical ments per probably chargeable negligence and com- se, be pliance utility charge. hold We relieves the compliance with the minimum standards contained Safety is not conclusive the National Electric Code particular question circum- of due care when the justify finding Elliott a lack of due care. stances Cooperative, 233, 233 104 Black River Electric S.C. v. et 127, 69 A.L.R. 357, S.E. 2d 74 A.L.R. 2d Anno. 907; despite compliance seq. utility negligent is Whether ordinarily question Safety for Code is Va.), jury. Monongahela (W. 123 v. Power Co. Johnson 2d 81.” S.E. supra, judg- Kingsport

In Utilities, Brown, Inc. v. upheld although appeared plaintiff it ment for the original wires that the installation of the defendant’s Safety was in accordance with the National Electrical stating- line when Code, court that the fact that the minimum stand- constructed was in with the accordance necessarily ards the electrical code did not indicate changed conditions, it would be safe under question concluding least a about which fact might presented as to whether reasonable men differ was utility negligent growing nature view of the of the area. in numerous cases have held

The courts theory company damages that its un- liable for high-tension were not maintained at insulated wires height McGin- under the circumstances. a sufficient all 250 (1922), v. Delaware,

nis L. & W. R. C. 98 160, N.J.L. 119 (1929), A. 163; Neumann v. Interstate Power Co. Mississippi Light 179 46, Minn. 228 342; N.W. Power & (1934), (C.A. Miss.), Co. v. Whitescarver 5th 68 2dF. (1934), 928; Sandeen v. Willow River Power Co. 214 166, Wis. 252 N.W. 706; Southwestern Gas & Electric (1934), App., Co. v. Hutchins Tex. Civ. 68 S.W. 2d Walpole Light (1935), 1085; v. Tennessee & Power Co. App. 19 Tenn. 352, 89 S.W. 2d 174; v. Pacific Lozano (1945), App. & Electric Co. Gas 70 Cal. 161 415, 2d P. 74; 2d Chatfield New v. York State Gas & Electric (1944 Supp.), Co. 57 N.Y.S. 2d Beck v. 406; Monmouth (1948), Lumber Co. 137 268, N.J.L. 59 A. Pike 400; 2d v. (1951), Consolidated Edison Co. 303 N.Y. 99 N.E. 1, revg. App. 2d 885, Div. 892; N.Y.S. 2d Virginia Bailey (1952), Northern Power Co. v. 194 Va. 464, 73 S.E. 425; 2d Southern Pine Electric Power (1952), Ass’n. v. Denson 214 Miss. 397, 57 2d 859; So. Co-op. Elliott (1958), v. Black River Electric 233 S.C. Rogers Chattanooga 2d (1954), 357; S.E. v. supra; 4-County supra; Clardy, Electric Power Ass’n. v. (1957), supra. Grice v. Central Electric Power Ass’n. In the case of Southern Pine Electric Power Ass’n. supra, v. question Denson, this Court that it held was a jury negligence for the power it whether was actionable power company string high voltage its uninsulated only

line 25 feet from the water well and within being immediately 3 to 6 feet of above the hole, well plaintiff’s when as a result thereof decedent was withdrawing pump electrocuted in line from the “Electricity well. The in that case said: is a Court highly dangerous agency, it and must be denominated negligence high voltage to erect close so to the well a line, unless insulated, or unless in the exercise of the highest deg*ree strung high enough care, of it was off ground reasonably prevent injury of the to him.” 4-County Clardy, supra, In Electric Power Association v. which, injuries personal damages for action an repairer, hy plaintiff,. and a well driller sustained plaintiff with the coming in contact of the as a result voltag’e high, lines, defendant Association’s to sustain was sufficient held the evidence Court negligent in con- finding been a structing that the defendant had directly maintaining almost over its lines only ground. 25 feet from the well and a drilled p. Electricity, is said: 93, it Sec. In 18 Am. Jur. dangerous persons controlling “The rule that so permitted electricity agency not be an should subtle as speculate probable regard effects or to its to theorize only affecting upon is human life of results the chances wires common sense. in accord with reason and danger beyond placed insulated or must be either may they persons going where line of contact reasonably expected go. maintenance be While with excessive burdened of wires should not be electric company maintain- it that a still clear liabilities, ing dangerous seems ground relieved on wires not be should exercising duty expense affirmative of from the of proper degree maintain insulation care reasonable appre- reasonably thereby prevent to be accidents neighborhood lawfully coming those hended to such wires.” powerful deadly character of the In view the electricity appellant’s wires on the current of carried suspended well location over the which were oil ground, height only think the we 20 feet above appellant jury right have that the should had a to find anticipated nature here of the occurrences forseen circumstances think that under all the involved. We also appellant’s negligence question was one for jury matter' of and could not be determined judge’s refusal trial was no error law, and there requested by peremptory grant instruction Company. appellant Power

252

Finally, argned appellant it is behalf the of dangers that Walters been warned of the upon working question, attendant around lines negligence failing and that Walters’ heed such warnings, negligence co- of Walters and his employee employer McGill, Dearman and his Luther proximate was plaintiff the sole of accident; cause injury would have if Mc sustained Luther no Gill and Walters and had not Dearman violated provisions (Code of 257, of Ch. Gen. Laws 1960 Miss. through Supp. Section 7015-11 1960 7015-19, Miss. Code Rec.), provide pre 1942, of entitled “An Act to proximity high voltage cautions be taken in lines of prevention provide penal for the of accidents;” ties for the violation act.

But it is well-settled the decisions of this may proximate Court that there be more than one cause injury; appellant’s negligence of an that, if the proximately injury, appellant to the is contributed though negligence proxi liable even its not is the sole injury. mate cause of

In the case of American Creosote v. Works La. Harp (1952), 215 Miss. 60 5, 514, So. 2d the Court said: appellant argues “In this connection further its negligence proximate appellee’s was not cause of in- jury proximate but that the sole cause thereof his negligence cutting top own bands across the may together. which held the load standards There proximate injury. be more than one cause of an 38 Negligence, appellant’s neg- Am. Jur., if 63, Sec. proximately ligence injury, jury contributed as appellant it did, found that has is then liable even though proximate negligence its sole not cause 374, thereof. Brewer v. 189 Lucedale, Town Miss. Refining 198 42; So. Gulf Brown, Co. v. 196 Miss. Grocery Kincade, So. Planters v. 765; 2d Wholesale So. 2d Moreover, Miss. 578. when reasonable might question minds differ the the of what matter, on proximate injury question usually is the a canse of an is jury, Negligence, the C.J.S., for Sec. and like- questions negligence negligence contributory wise of and generally jury.” are the determination aof Four-County Clardy, In Electric Power v. Ass’n. supra, the Court held whether the and that, under facts opinion appellee in circumstances outlined the the was negligent, negligence, any, and whether such if was a proximate contributory appellee’s or cause of the in jury, and, so, if the extent to which it affected appellant’s liability, jury. were issues for the The Court independent, also held that, whether an there in was tervening appellee’s wholly injuries, cause dis having connected from and causal to the no relation appellants’ negligence, question prop awas which was erly jury. to the submitted supra,

In Grice v. Central Electric Ass’n., highway where a worker killed when boom on dragline a came contact wire, with the defendant’s reversing judgment the Court, in for the defendant reinstating plaintiff, rejected a verdict for' the operator trial court’s conclusion act of the boom swinging against boom the wire the act undertaking get the decedent in on truck while among high-voltage the boom was or wires con- intervening independent stituted an cause stating accident, that such acts did not absolve the negligence, contributing defendant of its cause of the accident. at least as a Kingsport In the case of v. Utilities, Brown, Inc., supra, judgments against power company for five plaintiffs, injured assisting removing heavy while machinery shop alley from machine an when the into cable of crane came contact either in in close proximity high-powered to the defendant’s were wires, though upheld even it was shown that the boom of the higher wire, than crane liad been 10 feet raised opposite machinery being side moved was on crane owner crane, wire from the and the clearly negligent action; and liable in the same found intervening was re- cause and the defense of efficient by jected. the that was of the fact held that reason It expand- plaintiffs injured was an area where the were ing have Power should business the section involving use booms known the of of numerous cases heavy machinery, known knew have or should the that its wires uninsulated accident similar to an accordingly jury question might result, one the in reasonably have found the defendant should could that hap- probability have the of accident foreseen an such pening. length necessary

It is not that at we discuss provisions to the of Laws of referred Ch. opinion chang'e the not The statute in our does above. systems persons operating trans rule that mitting electrical deadly electricity required to are currents of highest degree in their construction the of care exercise opinion was not The statute in maintenance. our purpose relieving the enacted for the of Power Com pany high-tension duty place its its care to from to exercise due ground

wires above the a distance sufficient guard any directly against or in contact of nature to pre pre directly might ordinarily anticipated. The be prescribed cautionary act are measures in especially protection in who, of scribed for the workmen premises occupied performance work of lawful may exposed dangers high-tension be wires, to performance assigned work incident to clearly provisions That fact them. is indicated person require act, that, of Section 3 of the “No shall permit any any things pro employee to do hibited Section above.” premises plaintiff injured where the premises period at men been work for

were where had machinery equip- weeks. Massive and oil well several premises awaiting ment still remained on the removal ample new well site. is There evidence support finding jury’s record Company, in the of due have care, exercise fore- should seen that booms or cranes or A-Frame trucks similar being operated by to the A-Frame truck which was moving Walters and Dearman would be used in equipment to another well site. With these facts in mind jury right the pany conclude that the Power Com- negligent failing elevate its wires ato greater height ground above the well site; and plaintiff’s fact Luther McGill, em- Inc., ployer, and the owner truck, A-Frame or its agent person responsible operation or other for the equipment, experienced the failed man to station a in electricity supervise the well to at site Walters loading equipment, Dearman in the of the and failed post plain operator to and maintain in view of the warning sign, specified a the truck durable as in the opinion, above statute, not, mentioned did in our relieve Company liability negligent the Power its failure height to elevate its wires well the location to a above ground dangerous the with commensurate the situation which at the existed well location. appellant’s think

We is no in there merit the plaintiff contention since that, the had been warned of danger coming power the contact in with the lines, plaintiff being assumed the risk of electrocuted coming in contact with the wires and was therefore right against barred of Ms recover the Power Com pany. in and Tel. Court held Cumberland Tel. This (1913), et Co. v. Coshahan 105 Miss. So. al. telephone company light a an where electric company negligent permitting both in their wires were employed by the tele come contact lineman in and a phone repairing company trouble, was killed the risk as an incident

fact that the lineman assumed telephone company employment not did with the to his operate assumption as to the electric as of such risk an recovery against light company, prevent elec- such nor a company. light that case tric held in Court also simple gross, contributory negligence, that no whether or recovery, negligence will bar a classified, if can he thus simply but a of the amount thereof. will cause diminution plaintiff guilty himself

Whether the pole contributory negligence permitting gin contact with cable the A-Frame truck to come in question high-tension to be determin wires was of fact proof plaintiff jury. that the ed shows While line and knew knew of the location of the prevent gin pole and he had to exercise care to coming with cannot he said it, cable from in contact it negligent plaintiff as a matter of law pole gin permitting or cable come in contact testimony dispute that the wires. The without shows passed times the truck under the wires several plaintiff’s according testi incident; without mony, gin poles cable not come closer did testimony although feet, the wire than three or four that the elec was to effect tricity jump of more than could not over distance question half inch. circumstances the Under these plaintiff’s jury contributory negligence to the was a plain juestion; jury and even if the had found contributory negligence guilty tiff of such contribu was complete tory negligence to bar would not have been recovery. Rec. con 1454, 1942, Code of Such Section tributory negligence re would have under our statute damages only the amount of sulted in the diminution of plaintiff entitled otherwise would have been which the to recover. necessary the other

It that we in detail is not discuss appellant argued points assigned Power judgment Company grounds of the as for reversal the lower court.- trial action of the

There was error in the no judge allowing to the to he made in two amendments plaintiff’s was amendment an declaration. first beginning which amendment at the of the trial, allowed charged shock com that, as a result of the electrical plained plaintiff permanent damage of the sustained change right ear to nerve and membrane his personality amendment, in due the shock. The second to at rebuttal testi which was allowed the conclusion of the mony plaintiff’s charged Gill, witness William high that the have insulated its Power should protection of tension lines over the work for the area plaintiff equipment employees and other while being removed. provides expressly Rec., Section Code of allow the court shall have full amend- to any pleading proceeding any ments be made in to bring merits time before the so verdict, as parties fairly controversy The above between the to trial. properly opinion mentioned in were amendments our nothing in the record indicate allowed, and there is any way by appellant prejudiced in that the allowing- of the court in the amendments. action appellant’s There is no merit in the contention permitting the cross-examination of the court erred representative Ferguson, of the Power Com- Bethel inspected pany company who, Robinson, with E. O. day after the accident the scene of the accident the occurred. think that error cannot

We also reversible predicated upon by the trial the statements made be explanation judge overruling of his action in appellant Company’s continuing objection plaintiff’s testimony witness exclude the motion testify expert competency an Dennis, H. M. whose electricity, vigorously subject of witness on the challenged by appellant. The record shows that knowledge questioned length at witness was as to his electricity testify expert competency and his as an part witness. The court that of the witness’ excluded testimony relating had read book he stated he subject electricity on the that he was but later found produce. appellant’s unable to The court overruled the testimony. In to exclude all the witness’ motion overruling appellant’s motion to exclude all of testimony, witness’ is the Court said: “I think that he qualified expert person superior, as an who is skilled * * * trade, in his his avocation. One does not have subject all to know there is to know about in order expert, be an and he does not have to be the smartest testimony, man in I this field. think from witness’ this years experience working electricity, with 27 he acquired has skill in his his I think trade, avocation. qualified.” he is judge, opinion, statement the trial in our weight testimony,

anot comment on the of the witness’ ruling but a mere statement of the for the Court’s basis qualified that the witness was under rules established testify expert subject of law to as an of elec tricity. This Court has least held two cases possess highest a witness not need be infallible or degree expert; testify generally of skill to as an that it is possess knowledge peculiar sufficient the witness likely possessed to the matters involved and not to be by ordinary laymen. King King, v. 161 Miss. 827; So. Glens Falls Insurance Co. v. Elevator, Linwood 241 Miss. So. 2d 262. This Court has also held largely that it is within judge the discretion of the trial permitted as testify whether not a witness will be expert. as an Glens Falls Insurance Co. v. Lin supra. think that it wood "We cannot Elevator, be said judge giving that the statement of the trial his reason appellant’s overruling’ the motion the to exclude for testimony prejudicial of the witness was to the Dennis rights appellant. of the point assigned argued

The the last and on "behalf of ground judg- for reversal of the ment of the lower court that amount is, the of the verdict plaintiff’s is so excessive view of the nature of the injuries prejudice part as to evince bias and on jury, judgment and the be set aside should granted new trial that think reason. there is We merit in that contention. plaintiff

The record shows that was admitted Hospital Magee immediately General after receiv- ing the electric shock and was examined and treated Stephens. hospital at Dr. J. O. Magee He in the remained days. two to Laurel He was then transferred Dr. was later and was under the care of Bass. He neurosurgeon Neill, examined Dr. Walter of Jack- Stephens plaintiff quite son. Dr. testified that the upset hospital Magee, when to the at he admitted complaining pain right arm and that he was in his positive physical findings confined hand, but were right doctor redness of the forearm. The hand and kept plaintiff hospital that he in the hours. stated he left not what his condition was after He did know Stephens Magee Hospital. cross-examination Dr. On plaintiff’s right hand testified that on burns any degree without ob- and forearm were first burns is in a electric burn it blisters; vious case of an impossible depth during of the burn to determine the immediately following days the burn. He the first few quieted plaintiff’s but down, stated nerves right complaining numbness in his he was still of some hospital. Neither forearm, when he left hand testify Neill was called to as a witness Dr. Bass nor Dr. during the trial. Willey,

Dr. L. W. testified he examined Forest, plaintiff Tuesday request before the trial plaintiff’s attorney. gave plaintiff He complete physical neurological examination. The plaintiff history gave doctor him a stated injury plaintiff his him at the oil well told site. that he was unconscious for several hours receiv- after ing the electric shock and he did not know what was going following day. on or where he was until the He Magee Hospital stated that after he left the he was days, under the care of Dr. Bass three four that he was later examined Dr. Walter Neill of Jackson. continuously He stated he that had suffered from head- aches since his that accident; he had been restless and get along family had been unable to with his well as prior he did to the that he accident; was cross and people irritable, and did not like to be crowds; that made him nervous, and that caused his headaches to previous be that worse; to the accident he had never any noticed such disturbances. The doctor that stated during plaintiff his examination of the he discovered plaintiff that right the had an air deafness in his ear plaintiff which the did not that know he until had doctor discovered it, and further examination revealed right that the ear drum on the ear was not but there; injury the doctor could not swear that the to the ear a result of the electric shock. With reference plaintiff’s nervous the doctor that condition, stated appeared it plaintiff him, from what told that him, there was some nervous involvement. The doctor was opinion of that, as a result of abnormal electric system, plaintiff stimuli nervous was suf- fering personality change to the shock, due electric might up entirely. and that in time clear The doctor probability plaintiff’s also felt that in all headaches improve. were due to the electric shock and in time should On cross-examination doctor that his stated find- irigs, including plain- Ms statement to the effect experienced personality change, tiff had were based plaintiff concerning on what the himto Mmself. related Stephens Dr. was later recalled for further examina- questions propounded tion, in answer to to him appellants’ attorneys Stephens Dr. stated plaintiff any was never time that unconscious during days spent he him Magee saw the two he in the Hospital. The doctor also stated when he examined plaintiff difficulty plaintiff’s he found no with the eyes, plaintiff right and the an ear drum in his ear at the time he examined him. opinion

In our the amount of the verdict, injuries complained view of the nature of the of and testimony, grossly the medical is excessive, so excessive require judgment against in fact as to a reversal of the granting trial, new appellee agrees unless the to enter a remittitur of $10,- appellee agrees 000. If the amount within enter a remittitur in

twenty days judg from the date of the judgment ment of this Court, the court lower against the Power will be $15,- affirmed for judgment against 000; otherwise the the Power Com pany will be reversed and case remanded for a new damages only. trial on the issue of appellee’s proof We think the was insufficient liability against Company, establish Cities Service Oil along rights the owner of the lease oil the easement ownership incident to the of the lease. Cities Service rights owned the easement in the oil well location but did not or own control line, and had no rig equipment drilling interest in the which and McGill’s engaged moving haulers were from the Wells-Womack drilling 1No. well site site in the Merrit field. drilling equipment rig The and Larco. were owned rig eqMpment drilling Larco, status of whose permission were stored on the well location with and, in licensee that of a mere Service, of Cities dnty Mc- opinion, to Lnther owed onr Cities Service no engaged employees, load- were who its Gill, Inc., and equipment drilling rig hauling for ing duty owes which landowner than the Larco, other a licensee. occupant law that the owner

It is settled or entering duty premises a licensee no owes land or willfully except upon premises, harm him or not to Kelley wantonly. Negligence, 104; 765, Sec. 38 Am. Jur. Sportsman’s Speedway, 2d 632, 80 So. 224 Miss. v. Bishop 899. 234 Miss. 106 So. 409, 785; Stewart, v. supra, Speedway, Kelley Sportsman’s the Court In v. license a licensee as follows: defined the status of “A upon broadly person enters who is defined pleasure property convenience, of another for his own entering person In constitute the so or benefit. a order to upon property another entrance licensee, his permission implied pursuant to the license must be par. Negligence, 104. Am. of the owner. 38 Jur. * * * Ordinarily, chooses to remain on a licensee who premises danger patent all himself is takes on where probable danger, whether it natural and results of appliances from in the land or results a condition gratuitous is a licensee whether the licensee thereon, upon privilege entering- paid or one has who premises.’ page Negligence, Par. 38 Am. Jur. 105.” Bishop (1958),

In case of v. the recent Stewart judg- 106 2d Court affirmed Miss. So. this sustaining- court the defendant’s ment of the circuit persons against stored who had demurrer in suit filed a pipe portion of another’s truck loads of steel several plaintiff permission, premises fell over and the with his holding pipe. gist that the of the the stacked plaintiff the de- circumstances as was under the to only, owed a licensee and the defendant fendant, such, willfully wantonly duty more than not and to her no to injure allegation wanton There was no of willful and her. any injury there he basis such case, in nor can present allegation in the Inasmuch as Cities Serv- case. occupant portion lot ice was lawful of that pipe equipment, storing it was used and other duty invoke the rule that it owed entitled to no to except willfully wantonly. licensee not harm him and appellee’s proof think the was in

We also liability appellant against Lar sufficient to establish rig Drilling Company, drilling and co the owner of the being machinery equipment re other which was and moved from the Wells-Womack McGill, Inc., Luther at Merrit. No. well site a new well site public in- was a hauler and an McGill, Inc., Luther hauling loading dependent engaged in and .contractor supplies. heavy machinery-and equipment, Luth- oil field poles, gin other and trucks, er McGill owned equipment cables hauling loading of such for the and needed supplies, heavy equipment crews had its own and personnel supervisory handle and its own of workmen engaged operations. hauling the services its Larco drilling rig its of Luther McGill for removal machinery equipment from and other oil well drilling site the new well site, No. Wells-Womack that on March shows in Merritt Field. The record pusher McGill’s office or tool called 10 Larco’s foreman telephone gave City McGill’s of Laurel on the equip- moving dispatcher about truck instructions high- dispatcher that a truck and told McGill’s ment, working area Wells- tension line crossed would extreme caution 1 well site and Womack No. equipment, moving and the have to be taken dispatcher the truck drivers of inform truck should they yard. then went Harris fact before left the following morning told McGill’s the well site the

264 pusher about the

truck that he should warn his hands power lines that were there. independent person contracts

“An contractor is who something him with another do for but is not to who subject rig*ht by to the other’s controlled the other nor respect physical control with his conduct in to performance to Agency, undertaking.” of the Rest. Sec. pars. p. Company 2 2, Mills, v. 171 3, 11; Texas Express Miss. 156 Motor 231, 866, 869; So. Gulf Coast Diggs, Co., Inc., 292; v. 174 Miss. 165 Meridian 650, So. Co., Ward, Taxicab v. 186 636; Miss. So. Inc., Crabtree, Carr v. 212 Miss. 408. 656, So. 2d general employer rule that an not is is independent liable for the torts of an contractor or Express latter’s servants; Co., Inc., Gulf Coast Motor Diggs, supra; Independent v. Am. Jur. Contrac except Sec. 27 and certain cir tors, cited; under cases case, cumstances which do not exist in this ample, as for ex employer where the assumes control direction or performing of the method of far work. So any pusher shows record neither truck nor McGill’s employees other of were under control McGill subject any right Larco, or to of control Larco respect physical performance their in the conduct undertaking, performing of or the method of work. Under these circumstances we think there was liability part any negligence no on the Larco may Luther which Inc., servants, its have McGill, plaintiff’s injuries. contributed opinion For the which reasons we have stated in this judgment of the lower court will he affirmed as appellant liability, on the issue of damages but reversed issue as the amount of granted only, and appellee, new trial on that issue unless twenty days judg- within from the date agrees Court, ment rendered this enter a remittitur thereby reducing judgment amount of $10,000, judgment to in which $15,000, event the will be affirmed appellant Company the of Power the sum judgment $15,000. The of court re- the lower will be appellants Company versed as the Cities Oil Service Company, Drilling judgment and Larco will be and appellants. in entered here of those two favor appellant with Affirmed remittitur as to the Power Company, judgment and reversed rendered in favor appellants Company, of the Cities Service Inc., Oil Drilling Company. Larco except

All concur, McG-ehee, Justices C. who dis- J., part. sents, and P. no Lee, J., who took dissenting part: McGehee, C. in J., liability The test of not in this case was whether or appellants Mississippi Light Company, the Power & Drilling Company, Cities Service Oil and The Larco Company negligent injury were connection the complained appellee of Walters, the it. and wheth- W. reasonably er or not the accident was We foreseeable. agree jury all that the of verdict the was erroneous finding appellants guilty negligence all three of these of proximately plaintiff injury which the caused assessing damages Walters, and in of his the sum against $25,000 all three them. of

We no basis for verdict insofar as the Cities find Drilling Company Service and thé Oil Larco opinion are concerned. The writer of that the thinks this alone appealed judgment from is erroneous also as Mississippi appellant Company. Light to & Power injury As to whether the accident plaintiff reasonably not, foreseeable or the record during year appellant discloses that 1928 the Mis- sissippi Light Company acquired right a & of way Simp- grantors across field and of its woods County, Mississippi. question son is whether or appellant reasonably not the said have should foreseen approximately years thereafter the owners appellant acquiring the land from which said part way, day right might sell all or its some purchaser of under the land the minerals might day from State the minerals some obtain permit well an & Gas Board to drill Oil oil way; right particular strip of land covered purchaser would some said minerals day employ drilling company a well on drill way; drilling company right the that location of the of machinery equipment might for haul the drill- then and ing 200 a the 150 of well to store the same on and equipment among machinery foot well the and site; right way would be an A-Frame so stored the of on approximately high, weighing 12 some more feet and right pounds, of the which had been stored on 4,000 way days prior only accident, the about four time to company drilling reason to believe that and machinery equipment loading trucks the said plaintiff, be hauled well would cause to another site employee not a Inc., the Luther which is McGill, an of injured by party be an electric shock suit, this resulting a of A-Frame with from contact the said Mississippi appellant high wires Power tension of away Light Company a feet located of 55 & distance ground. 19.6 I there- and between and 20.6feet above the judg- $25,000 from the affirmance of the fore dissent Company Mississippi Light ment Power & as to upon theory alleged this of reasonable foresee- based ability, requiring of $10,000 Ibut concur in a remittitur appellant Mississippi judgment against from the Light Power & to be entered here. plaintiff have re- Moreover, was shown been repeatedly peatedly danger ad- warned of the he warning not contact mitted that he had such received high that he knew wires, tension he admitted they dangerous. In this state doctrine were assumption effect, in full force and is still of risk

267 except There was no as between master and servant. relationship plaintiff, Walters, R. such between the W. appellant Light Company, Mississippi & and none such contended is for. appellees rely strongly on the cases of Southern 397, 214 57

Pine Electric Power v. Miss. Denson, Assn. 859, Assn., So. and Grice v. Central Electric Power 2d I two Miss. 2d but think these So. readily distinguishable factual situation cases are on the supra, from case at in that case, bar Denson power right way acquired the electric a association ap- Stringer, over the land E. of Mr. and Mrs. J. pellee’s Stringer already decedents. Mr. had well in backyard, his erected and the electric association high directly its There tension wires over said well. platform was constructed around the curb the well high, Stringer standing 4or feet on which Mr. pulled the time of the and he of the well accident, out piece pipe length 24 feet in to clean out the strainer point piece pipe thereof. He caused the to come in high directly contact with the tension above the wires instantly Thereupon well and he was Mrs. electrocuted. Stringer ran his assistance she was likewise elec- and trocuted. power negligence the in that of electric association directly placing

case its consisted of its wires over well already backyard, had in the which power company been located the and reasonably have that in

should forseen point pipe cleaning it into out the strainer the end of the likely pipe brought occur would that the would be high contact with the tension wires which were then approximately ground. and there 20 feet above the supra, highway being the Grice case, In re- village Sebastopol located reconstructed from the City highway being to the elevat- Forest, and high ed of a fill construction dirt several feet high Elec- underneath the tension wires of the Central stepped Thereupon trie Grice Power Association. running at- of the truck which a boom was board high boom came in contact with the tached, and this was shock- above, tension wire with the result Grice badly all the facts circum- ed and burned. Under reasonably company have fore- stances the should highway seen that because of the elevation of easily brought contact boom on the truck would be into injury high above, tension wires would In I words, result opinion to the workmen. other am of readily foregoing dis- the two cases are tinguishable on their facts and are controlled dif- principles ferent law. there was' an electric

Moreover, case, in Grice pole light in embank- of the Power Association left sharp mentioned, at a curve fill above ment dirt pole high light that the tension and this was so located directly hung highway fill wires over the and the dirt brought on which the truck and boom were located were high they tension much closer wires than think that it been reasonably I this condition made theretofore. light pole with this in the foreseeable that sharp highway an embankment of the curve such likely accident would occur.

ON MOTION TO CORRECT JUDGMENT Kyle, P. J.: judgment

The lower court rendered this case appellee R. 10, 1962, on March favor of W. Wal- appellant Mississippi Light against Power & ters Company and its two Cities Service Oil codefendants, Company, Drilling Larco for the sum of affirmed 25, 1963, Court on November $25,000. This appellant judgment court the of the lower as the to Mississippi Light Company on condition Power & reducing appellee $10,000, of thus the enter remittitur appellee judgment a re- to The entered $15,000. the judgment thereupon against mittitur, and a entered Mississippi Company Light the Power & and the United Fidelity Guaranty Company surety and States on supersedeas judg- bond, its for $15,000. the sum of The appellant of ment the lower court the was reversed as to Drilling Cities Service Larco Oil and Com- pany, judgment and was entered here in of favor those appellants. two appellee

A motion been filed has the W. R. Walters judgment against correct final to herein rendered appellant, Mississippi Company, Light Power & provide judgment so as $15,000 for shall judgment bear interest from the date of the of the lower provide appeal court, and so as to the costs of appellee this Court be taxed one-half to the W. R. Wal- appellant Mississippi and one-half to ters, & Light Company surety. its filing

Since the of the above mentioned motion judgment, appellant attorneys correct sissippi for the Mis- Light Company attorneys

Power & appellee for W. R. filed with the Walters have agreement writing Clerk this an Court entry judgment whereby appellee of a corrected R.W. Walters shall have recover interest judgment $15,000 affirmed this Court from the date judgment of the rendition of the court, of the lower whereby appeal the costs be shall taxed appellee one-half to the R.W. Walters and one-half appellant Mississippi Light Company to the Power & surety. and its appellee judg motion correct judgment will

ment therefore be sustained, and the affirming this Court rendered on November 25, 1963, judgment entry court, lower after the aof against appellant Mississippi remittitur, Power & Light Company surety supersedeas appeal and the on its provide will be bond amended and corrected so as 270 appellee together recovery $15,000,

for with interest $1,712.50; thereon the amount appeal equally between costs of shall be divided this appellee appellant. Illinois Central and the See Company (1963), 245 al. Nelson Miss. Railroad et v. So. 712. 2d judgment reversing judgment of this Court appellants Service of the lower court Cities Company, Drilling and award- and Larco Oil appellants ing judgment in two will be favor of those reaffirmed. judgment

Motion to correct sustained. except part. J., took no Lee, All concur C. who Justices Corporation McDade Associates Discount v. 2d 158 So. No. 42818 December

Case Details

Case Name: Mississippi Power & Light Co. v. Walters

Court Name: Mississippi Supreme Court

Date Published: Nov 25, 1963

Citation: 158 So. 2d 2

Docket Number: 42657

Court Abbreviation: Miss.