10 So. 2d 542 | Miss. | 1942
Plaintiffs brought suit for damages arising from the death of Jack Roberts, a member of their family, who *634 it is alleged was electrocuted when a long drilling auger which he was using came in contact with a highly charged power line maintained by the defendant company. At the conclusion of plaintiffs' testimony, a motion to exclude the evidence was sustained and judgment was entered for the defendants.
Plaintiffs' decedent was employed by the State Highway Department through one Patterson and was working under his orders and supervision at the time of his injury and death. The duties assigned to the deceased consisted of making certain soil tests by the use of a drilling auger whereby sample cores could be procured revealing the nature of the subsoil along a proposed highway route. This drilling auger was so constructed as to be manually employed and permitted extension in length by the addition of extra sections or joints of about three feet in length. Deceased was placed at this work with three other young men in a cultivated field and at a point on the right-of-way of the electric company almost but not exactly beneath an uninsulated power line of high voltage. At this point the wire was about 13 1/2 feet from the ground. Although the metal auger was built up by sections as the depth of the hole progressed, it was removed without being disjointed. At the time of the fatal injury, the hole had reached a depth of about 14 or 15 feet and when the auger was removed from the hole it was allowed to extend upward its full length, when it swayed or fell over onto the electric wire and received and conducted the voltage of its current to those operating it, resulting in the death of the said Jack Roberts.
The appeal presents the legal question whether, conceding the facts to be as outlined by plaintiffs' case, the defendants could be held to have violated a legal duty owing to deceased. Although the degree of care has been often said to vary with the degree of danger inherent in an instrumentality, a comprehensive definition of requisite care is "that degree of care commensurate with *635
appreciable danger appraised in terms of ordinary prudence and interpreted in the light of the attendant circumstances," Supreme Instruments Corp. v. Lehr,
However, there are many other cases in point dealing with electric wires. In Borgnis v. California-Oregon Power Co.,
If it were not enough that the use to which the premises was put was unusual, especially with respect to the manner in which such use was conducted, nonforeseeability may be further predicated upon its use by those who were not invitees or patrons of the defendant company and therefore, as to it, bore the relation of trespassers or mere licensees. 2 Rest. Torts, Sec. 333(b).
Plaintiffs cite Code 1930, Secs. 1504, 4998, as authorizing plaintiffs' decedent, acting under orders of the State Highway Department, to go upon the land of the defendant company for the purpose of preliminary survey. Such statutes divest the intruder of the penalties and responsibilities of a trespasser by justifying his act but it does not give him any greater rights than belong to a licensee. The duty of the owner of the land to guard against injury in such cases is governed by the rules *638
applicable to trespassers. Milauskis v. Terminal R. Ass'n,
There was therefore no error in the judgment of the court as to the defendant power company. Nor was there error in directing judgment for the defendant Patterson. Crossett Lbr. Co. v. Land,
Affirmed.