*1 express change of venue. titled to We merely that matter. hold hearing is entitled change of venue
ruling his motion for summary judgment the motion for prior ruling.
cannot be considered to such court trial reversed proceedings in
case for further remanded
accordance herewith. remanded.
Reversed and
All concur. Justices Administratrix Jane
Mary NELSON, Estate De Raymond Nelson,
ceased, Appellant,
v. I AND ELECTRIC
IOWA-ILL NO IS GAS
COMPANY, Appellee.
No. 52993.
Supreme Court Iowa.
July 18, 1968.
449 plaintiff each, was unsuccessful. Here we are concerned against with her action Iowa- Illinois Gas and Company Electric for al- leged negligent maintenance its electric transmission line. close At the of all evi- dence the trial court verdict directed a for defendant. appealed Plaintiff has judgment thereon. affirm. Plaintiff asserts the trial court erred in holding the evidence insufficient sub- for pleaded specifications negli- mission gence refusing submit the case un- presumption provided by der the rebuttable Code, 489.16, what nowis section I. considering propriety of a motion for directed verdict we view the in the light evidence most favorable to the party against whom the motion is made. 344(f)2, Rule Rules of Civil Procedure. decedent, Raymond Nelson, by Company was hired Service Oil Cities underground gasoline to remove three stor- age tanks abandoned site of an ser- vice about six miles north station of Fort Dodge. station ceased The had business operations approximately prior months six 1, to December 1961 the date on which decedent, accompanied Harvey Finney, operator, re- crane went site to move the tanks. The crane mounted on a Guinan, Dodge, appel- Ulstad & Fort for large truck had been taken to station lant. night site before. Burnquist, Erb, Johnson, McCormick & high- The on the east side of station was Dodge, appellee.
Fort for 413, way which runs in a north- there along
south direction. Parallel to 413 and thereof, main- the east MOORE, Justice. 13,800 consisting power tained a volt line This is negligence action adminis- poles had three wires. The tratrix of the spouse estate of deceased per- been originally installed in 1929 1, death by electrocution on December appar- county engineer who 1961. Different facets of the factual ently authority direct location of circumstances have twice been before poles. the line Between 1929 and 1952 court. See Nelson v. Gas & Iowa-Illinois phase single carrying volts. 7200 101, 289, Elec. reconstructed, which plaintiff’s pur- dam- involved claim for In 1952 line was ages against approval from the Cities Service suant secured Oil Co. Commission, Nelson v. Iowa Commerce. to accommodate Cities Service Oil 259 13,800 poles, original volts. located which involved N.W.2d boundary about one foot west of the be- compensation. claim for workmen’s arcing jump- highway station I saw tween service wires. up, position but new property, were left from wires when looked Ray- ten saw smoke around bucket wires and foot crossarms instantly. the three were at- killed stalled. Two of mond the crossarms. tached to the west half of Raymond “At the time Nelson was re- *3 The the third attached to outer was moving the chain from the bucket and the The uninsulated of east half. the the made time crane contact thirty apart. were than inches more six electricity I I saw looking at him. was approximately The five east wire extended stiffen, any arc- him but didn’t hear or see beyond feet the over the right-of-way and and boom. His between the wires property. service station working hands were on the chain.” Finney On December decedent and Immediately the after accident defendant began preparations to went to the and site employees was notified and its They the had worked to- remove tanks. the called as vestigated facts. Plaintiff gether jobs. Both men previously other on Ewen, witnesses, one of her Mr. Warren the were discussed aware of the wires and superin- electrical defendant’s distribution vicinity importance using of care in the tendent, inspected the and who had line had notice thereof. Defendant the day the accident. He testi- boom on project. removal knowledge tank negligible damage fied line to the was directly Finney placed cab of the crane the copper on bright spot the sur- was visible hung the under boom over the wires with corresponding face of the east wire and a operated lay. the the tanks He area where spot the stay was found on cable on decedent on the while worked crane top. boom two from the approximately feet for ground a chain the tanks attaching point spots contact be- These mark removing lifting and the chain them after and the boom. tween electric current They each was taken tank out. the wire Whether boom touched placed ground to the southwest of electricity arced could not be determined. they from were removed. holes which point the transmission contact on place position in order to them that gravel driveway wire was above crane swung toward the wires. the service station. removing As decedent was chain Ewen, graduate engineer Mr. electrical from the third and last tank which expe- and University from the of Iowa an hole, a just lethal been lifted out of its designer rienced electrical transmission passed through his current electricity lines, regarding testified detail body resulting his death. n involved, here re- transmission line quirements “I had taken last tank Finney testified: the National Safe- kept par- straight ty proper I tanks in a designing out and Code transmis- stay away from building allel sion lines. evidence so Plaintiff introduced posi- wires, copy safety and I left crane boom in same code Ewen which stat- dropped supervision prepared tion it when I the tank ed under the was was Department Commerce, left I set the house lock the a little “in which slack. Raymond qualified people try brake boom to determine some move. with; everyone he chain tank and can live removed from standards which safety trying public; chain bucket when for the stand- to remove from standards of customers; electricity house locked safety hit. When ards of for stand- safety upper end at have man move boom’s ards of for workmen who could lines; inches, sitting that. I most six if work on the standards also Raymond safety operation in cab I saw stiff- seat when for their continued for good things up en and saw end of customers. All these looked boom away feet all organizations was three or four are involved. Several have have stated he cross-examination could that draws the committee members testimony His includes: been mistaken. periodically. them and revises standards are and new methods materials As new “Q. they (rules you aware Are up- available, upgraded standards have Safety Code) National the Iowa He further testified dated.” adopted the Iowa Commerce Com- Commission, which Commerce mission as standards be followed adopted said responsible, safety for installation main- rules proper safety as the standards supply tenance electrical and communi- practice in Iowa. electrical cation State of Iowa Utili- lines ties? A. No. many Ewen related the Mr. code, those where including that? weren’t aware of You private lines near are over or No, aware it. wasn’t *4 require- the
property, and stated minimum testimony “Q. any longer your it Is exceeded been met but ment not the that this limits distance between book place outlined of the He at the accident. edge the that and that line western slab height minimum and clearance how the basing to I am eight feet? A. by several requirements were exceeded opinion on that book. the Na- having Ewen stated in mind feet. the term Safety tional Electrical Code and any “Q. longer your opinion Is it that practice” found no engineering he “good requires at least eight this book an foot in the installation. defect or deficiency point between a itnder the line clearance and the of that western concrete Miller, witness, a H. Glenn go slab? would have fur- to engineer highway com- civil and former study ther state. employee, exhibit plat, identified a mission “Q. say it correct at this, Then is oil prepared showing him the station present you withdrawing for the least site, the and the location of measurements opinion? opinion that A. That this expressed items. He various book, My opinion yes. will not be based improper be- poles the location was book.” east overhang cause wire of the private property. The is en- over record As we understand record Peter- Mr. tirely any proof devoid de- of whether opined poles son the location permission fendant had obtained proper engineering wire was not because to so locate wire or held an easement. pri- location of east wire over training experience He had no or an property. stated He he believed there vate engineer electrical studied had never high power were other transmission lines requirements of the National county private property over Safety Code. nothing and he of the circumstances knew of the installation of the line here involved Peterson, Keith a Bache- holder of utility company or whether the an degree engineering lor’s the Uni- from easement. versity Iowa, called as a was witness plaintiff. engineer He had acted field as a Hogan, graduate engi- a Willis in New designed York and had volt one employee neer of defendant community transmission line for a antenna years, for 45 described the 1929installation system unfamil- transmission line. He was and the 1952 reconstruction trans- of the provisions safety iar with the of the He line. installations stated although provi- he had read its some of complied reg- with the established rules and sions week testifying. before He at- at ulations force the time the was work tempted provisions to construe some of its done. The service station was not built regarding requirements clearance but on until about Newberry, graduate gence may though utility
Mr. W. exist F. even University Bach- has complied volved State with with Engi- duty elor of the It degree (2) of Science code. Stanley engineer prevent neering design defendant to use reasonable care to Muscatine, escape electricity its defendant’s from lines in Consultants way persons injury at and such studied installation as to cause instance might station held who in the area dan- lawfully near the site. He service electricity ger escape membership in national and state electrical incident to engineer registered pro- furnishing electricity, such lines. groups (3) and was a One Iowa, insurer, highest and while not an is held engineer fessional Illinois degree of care consistent conduct Massachusetts. operation (4) It is business. testifying great regarding After detail duty corporation of a or that and measurements of the various location maintains fur- and controls wires he stated: items at the site accident nishing carefully of electricity to others to places insulate their at all observations, where upon your Based then probabil- there ais likelihood or reasonable you your your experience, do training and ity by persons of human contact whose Newberry, opinion, Mr. have an pursuit contacted, duty, rightful business whether or not pleasure, brings mere diversion or them De- is the wire that contacted on *5 contributory part without fault their conformity on 1961, 1, in cember was situated However, danger. zone of National with municipal ordinance, absence of statute or Safety all stand- Code duty compel does to not practice? A. engineering good ards of adopt insulate their safeguards or designed in say would that the line was everywhere places at only but where conformity provisions with all people may work, legitimately go for busi- Safety far National Electrical Code and as is, pleasure may they ness or where vertical clearances concerned and —that reasonably proximi- expected be to come spacing conductors and clearances from ty 611, Iowa, Pages them. 612 258 adjacent buildings, and the clearances over 847, pages 848 of 138 N.W.2d. roadway, say that this is it with the Code and that ex- conformance With reference Electri- National requirements. ceeds the Code Safety cal have “While this Code we said: ‘good meet Does it also the term code has in far as case is con- so cerned, practices’ sanction, ? it engineering legislative standards and diffi- is Yes, cult to than sir.” conceive a better test of care compliance provisions.” with its Smith v. parties rely heavily our Both on 336, Iowa Public Service 233 Iowa recent case of Cronk v. Iowa Power 337, 6 123. N.W.2d 603, 843, Light 138 N.W.2d factually decedent, Cronk, which is similar with the facts In water a works many respects. employee, here These principles working ground help supported by many law cited authorities free a crane bucket when boom are recognized high voltage and are not chal came in trans Cronk contact with lenged by (1) Compliance parties. line and he electrocuted. finding is a fact on affirmed relevant the trial court’s liabili question compli strictly ty utility company’s due care. Proof on the failure ance with the to warn danger standards furnished of the insulate the wire by or Safety it fully National Code is not con after aware work was question going clusive on trier of the fact on be done near line and negli- warning defendant’s due care. give Actionable had time to or
453 given m a may the record the facts “We assume are not sulate the wire. Such may presumption had case be such the statutory transmission here. Defendant’s conclusively a matter law—rebut Decedent is unchanged remained since 1952. - as 69, 62, Hansen, Casey ted.” Iowa danger v. Finney fully aware 50, De- 26 N.W.2d starting work with the crane. before slightest company did have the fendant not statutory considering sec- be knowledge was to the crane notice 1966, in tion, 489.16, Code, now section proj- near its line. It learned of used Co-op., 236 Isaacs Iowa L. & P. v. Eastern only after was electrocuted. ect decedent 208, say: 210, we distinguish this case clearly facts These the evi- presumption “To overcome holding compel contrary from Cronk convincing. dence See must be clear and a matter law. supra. pre- If the Logan, Kauffman v. sumption negligence not so overcome is petition alleges numerous presumption It follows as must stand. rep- specifications Many are negligence. presumption matter of course that study careful of the record etitious. Our have created statute could not be said to plaintiff to intro- failed reveals ap- been the evidence of overcome unless any duce evidence which them could negli- pellant presumption rebutted the jury be fact issues to the submitted as court could gence points all that the affirmatively disproved. they are appellee’s testi- say as matter of law It is mony completely rebutted.” regard II. transmission lines so rebutted here. outside what is of cities towns now 489.16,Code, provides part: section holding herein we do not In view of our injury any proper “In case of contention consider or decide defendant’s ty any negli line, transmission such 489.16is unconstitutional. section gence presumed part on the will the trial court judgment of *6 corporation operating said line causing injury, said Affirmed. presumption by proof.” may be rebutted SNELL, GARFIELD, J., C. pre- Plaintiff urges weight of this LeGRAND, STUART, JJ., MASON and sumption enough require alone sub- is concur. jury. mission to the In the usual ordi- BECKER, RAWLINGS, LARSON nary negligence case we would tend JJ., dissent. agree, at least absence sufficient particular instance, rebuttal. how- RAWLINGS, (dissenting). Justice ever, negating the force the evidence respectfully dissent. presumption magnitude, of such is clear, convincing and that the conclusive evidence, humble presumption rebutted as law. is matter of light in a most favorable when viewed As jury to create issue. plaintiff, serves question pre of when rebuttable Light & we said in v. Iowa Power Cronk sumption matter law is overcome as a 603, 612, 843: previous oc has been before this court despite utility negligent “Whether is Mut. Fire casions. In v. Anchor Schaefer compliance ordinarily 205, Insurance Iowa 100 N. question fact.” jury trier of said, 857, 858, say: “It cannot W. we 344(f) rule (10),R.C.P. See also evidence, view the affirmative any conflict presumption naked raised reverse and remand. submitted to which should have been BECKER, JJ., join jury.” Logan, LARSON and See also Kauffman v. this dissent. 174N.W.