Coatney v. Southwest Tennessee Electric Membership Corp.

292 S.W.2d 420, 40 Tenn. App. 541, 1956 Tenn. App. LEXIS 157

• Court: Court of Appeals of Tennessee
• Decided: February 22, 1956
• Status: Published

Opinions

BEJACH, J.

This cause involves an appeal by Walter Coatney, administrator of the estate of Walter Buel Coat-ney, from a judgment of the Circuit Court of Chester County, dismissing his suit against the Southwest Electric Membership Corporation, — the plaintiff in error in this Court having been the plaintiff in the lower court, and defendant in error, Southwest Tennessee Electric Membership Corporation, having been the defendant in the lower court. For convenience, the parties will be styled as in the lower court, plaintiff and defendant.

Plaintiff, as administrator of the estate of his son, Walter Buel Coatney, sued the defendant for $25,000, alleging the wrongful death of plaintiff’s intestate by electrocution, caused, as was alleged, by negligence of the defendant.

At the conclusion of all of the evidence, both that of the plaintiff and that of the defendant, the trial judge sustained a motion by the defendant for a peremptory instruction to the jury, and dismissed the cause. A motion for new trial was seasonably filed and overruled, after which an appeal in the nature of a writ of error was perfected to this Court.

Plaintiff, as appellant in this Court, has made four assignments of error. It is unnecessary to copy these assignments of error in this opinion, and unnecessary to discuss them separately. All raise the single question of whether or not the trial judge erred in granting the defendant’s motion for a directed verdict; or, stated differently, whether or not on the evidence presented, this cause should have been submitted to the jury.

There is little or no dispute in the testimony, and the question, therefore, resolves itself into one of whether reasonable minds might or should have drawn different inferences or conclusions from this testimony.

Plaintiff’s intestate, Walter Buel Coatney, was engaged with his cousin and partner, Robert Neal Coatney, in the television business in Henderson, Tennessee. At the time of his death he and his said partner were removing a portable television antenna which they had previously erected on the property of Mr. James Cloud, in connection with the demonstration of a television set in the Cloud home. The Cloud residence is on the west side of Barham Street in the town of Henderson, facing east. It is supplied with electric current by the defendant, application for installation of same having been made by Mr. Cloud some time previous to the occurrence of the incident involved in this law suit. Defendant’s high powered lines for distribution of electric current run along the east side of Barham Street. There is a pole on the east side of the street in front of the Cloud property, and a line has been run from it across the Cloud driveway and part of the Cloud property to a pole on the Cloud property, a distance of about 122 feet from the pole on the east side of the street. This line, as well as the line along the east side of Barham Street, carried a current in uninsulated wires, of 6,900 to 7,200 volts. There is a transformer on the pole on the east side of Barham Street, and another transformer on the pole on the Cloud property. The transformer on the east side of Barham Street is 67 feet from the residence of Mr. Cloud, and the transformer on his property is about 50 feet from the residence. The live wire across Barham Street and part of the Cloud property carries a voltage of 6,900 to 7,200. The transformer on the Cloud property reduces this voltage to from 100 to 220 volts. The pole on the Cloud property to which the transformer is attached, is a dead end pole erected without guy wires or supports. It was originally placed leaning away from Barham Street, but at the time of the accident, it had changed position to where it was leaning toward Barham Street a foot or so, thus creating a substantial sag in the wire. The wires running into the Cloud residence from the transformer were insulated.

At the time of the accident which resulted in the death of both Walter Buel Coatney and Robert Neal Coatney, they were engaged in dismantling the portable antenna which was on a trailer about a foot and a half high. The antenna pole came in contact with the live wire of defendant at a point about three or four inches from the top end of the antenna pole, as same was then extended, and both Walter Buel Coatney and Robert Neal Coatney, were killed by the electric current which passed through their bodies. A burned place about three or four inches from the top of the antenna pole, indicated the point at which it came in contact with the live wire. There were no signs or warning of any kind indicating the existence of the live wire across the Cloud property, and Mr. Cloud testi-fiecL that he did not know that there was such a live wire across his property until after the accident.

The transformer on Mr. Cloud’s property was approximately 50 feet from his residence. The transformer on the pole on Barham Street was 67 feet from his residence. Defendant’s witness, Ben White, testified that the transformer could properly he located a distance of from 125 to 150 feet from a residence which it serves. Testimony in the record tends to establish that there is no other construction of defendant in the town of Henderson similar to that on the Cloud property. One witness, a Mr. Blasengame, who had formerly worked as a lineman for Pickwick Electric Membership Co-op., testified that he never did construct or see constructed a naked uninsulated wire with a pole unanchored, and that dead end poles were always “guyed” which was to prevent the line from pulling it down and causing the wire to sag. Other testimony in the record shows that at the corner of Barham and Fourth Streets, the defendant is serving a duplex with the same load service required at the Cloud residence, and that this service is run from a transformer on the street, a distance of 58 feet and 6 inches. It thus appears that the defendant could properly have run the service line with insulated wire from the transformer on the far side of Barham Street to the Cloud residence, and that, therefore, the real reason for erecting the pole and transformer on the Cloud property was not the necessity for having the transformer close to the Cloud house, but rather for the convenience of the Company in preparing to serve other and future customers of the defendant in that vicinity, — preparation for which was anticipated. One of defendant’s Avitnesses, a Mr. Cottrell, testified that the pole appeared to be located on the Cloud property to take care of future expansion. At least, a jury could have properly so found as a fact, and could also have found as a fact that the failure of defendant to secure the dead end pole on the Cloud property was negligence which proximately caused the death of plaintiff’s intestate. The record discloses that since the accident here involved, the pole on the Cloud property has been straightened and tamped, thus reducing the sag of the wires suspended from it.

Since the sole question before this Court is whether or not the trial judge erred in directing a verdict in favor of the defendant, we must, in our examination of the record for review, adopt the view of facts disclosed by the evidence which is most favorable to the plaintiff. As was said by Felts, J. in Lackey v. Metropolitan Life Insurance Co., 30 Tenn. App. 390, at page 397, 206 S. W. (2d) 806, at page 810:

“(1) In view of much of the argument in the briefs, it seems well to recall the rule, so often stated in numerous eases, by which both trial courts and appellate courts must be governed in determining a motion for a directed verdict. That rule is based on the constitutional right of trial by jury; and it has been fashioned so as to preserve that right and at the same time to administer the common law separation of function by which the jury try the facts and the judge the law. ‘There can be no constitutional exercise of the power to direct a verdict in any case in which there is a dispute as to any material evidence, or any legal doubt as to the conclusion to be drawn from the whole evidence, upon the issues to be tried.’ Tyrus v. [Kansas City, Ft. S. & M.] Railroad, 114 Tenn. 579, 594, 86 S. W. 1074, 1077; Brenizer v. Nashville, C. & St. L. Ry., 156 Tenn. 479, 3 S. W. (2d) 1053, 8 S. W. (2d) 1099; Osborn v. City of Nashville, 182 Tenn. 197, 185 S. W. (2d) 510.

“(2) As said so often, this rnle requires trial judges and appellate judges, in considering a motion by defendant for a directed verdict, to look to all the evidence, to take as true the evidence for plaintiff, to discard all countervailing evidence, to take the strongest legitimate view of the evidence for the plaintiff, to allow all reasonable inferences from it in his favor; and if then there is any dispute as to any material determinative evidence, or any doubt as to the conclusion to be drawn from the whole evidence, the motion must be denied. Wildman Mfg. Co. v. Davenport Hosiery Mills, 147 Tenn. 551, 556, 557, 249 S. W. 984; Walton & Co. v. Burchel, 121 Tenn. 715, 723, 121 S. W. 391, 130 Am. St. Rep. 788; Provident Life and Accident Ins. Co. v. Prieto, 169 Tenn. 124, 83 S. W. (2d) 251; Osborn v. City of Nashville, supra; Tenn. Cent. Ry. Co. v. McCowan, 28 Tenn. App. 225, 188 S. W. (2d) 931; Poole v. First Nat. Bank of Smyrna, Tenn. App., 196 S. W. (2d) 563, 567-568.”

On this view of the situation, from the evidence in the record before us, we think there were at least two questions about which the minds of reasonable men might have differed in their conclusions from the evidence, and the issues of this cause should, therefore, have been submitted to the jury for determination. These qustions are as follows:

1st. Whether or not it was negligence for the defendant corporation to place an uninsulated high powered electric line across tlie private property of Mr. Cloud without notice or warning- to either him or the public?

2nd. Whether or not it was negligence to attach such dead end, high powered uninsulated electric line to a pole on Mr. Cloud’s private property without anchoring such pole by guy wires or otherwise making it safe against the sagging of wires attached to it?

An affirmative answer to either or both of these questions would have justified the further finding that such negligence was the proximate cause of Walter Buel Coat-ney’s death.

The first of these questions presents the problem of whether or not the accident and resulting death of plaintiff’s intestate was a foreseeable result of the act of defendant in placing a high powered uninsulated wire across private property without notice or warning. While it may he true that the particular accident which resulted in the death involved in the instant case, may not have been foreseeable as such, we must remember that the particular harm which actually did occur, need not have been specifically foreseeable, in order to make the defendant liable. As was well said by Felts, J. in the case of Spivey v. St. Thomas Hospital, 31 Tenn. App. 12, 16, 28-29, 211 S. W. (2d) 450, 457:

“So the particular harm which actually befell Spivey need not have been foreseeable. It is enough that some such harm of a like general character was reasonably foreseeable as a likely result of defendant’s failure to use due care to keep him in bed and to protect him against getting out of the window in his delirium.”

The declaration alleges and the proof establishes that all other houses in the neighborhood were served with electricity by insulated lines run directly from transformers located outside of the properties to be served, the transformer on the Cloud property being the only one located on a pole on private property, across which private property an uninsulated high powered line was constructed. To make the matter worse, this uninsulated high powered line was run across the driveway into the Cloud property, with no warning signs erected or other notice to Mr. Cloud or the public. Certainly, at the time of construction of this line, the defendant corporation should have foreseen that some future legitimate use of the Cloud driveway might bring a user of the driveway into dangerous contact with its high powered uninsulated line. At least, we think this was a question of fact to be determined by the jury.

With reference to the second question, we think the undisputed evidence establishes that if the dead end post, to which was attached the transformer and the high powered uninsulated line, had been anchored by guy wires or otherwise prevented from leaning toward the street, thus preventing the wires from sagging, the fatal accident involved in this cause would not have occurred. The proof is that the metal pole on deceased’s portable antenna came in contact with the live wire at a point about three or four inches from the top of the antenna pole. It thus appears that a sag in the wires at that point, of no more than five inches, caused this fatal accident. In other words, if the post had been anchored with guy wires, or otherwise prevented from leaning, so as to permit a sag in the wires, it may be fairly inferred that this fatal accident would not have occurred at all. In our opinion, the jury and not the trial judge, should have been permitted to settle this question.

In the case of Tennessee Electric Power Co. v. Sims, 21 Tenn. App. 233, 108 S. W. (2d) 801, which case dealt with the dangerous quality of electricity, and of the duty of power companies to guard against such dangers, the Court of Appeals (Eastern Section)' speaking through Ailor, J., said:

“Electricity has been described as being potentially the most dangerous of the utilities commonly used today, lurking unsuspectingly in the simple and harmless wire and giving no warning of its presence. And in the location of its wires an electric company has been held obligated to either insulate its wires or place them beyond the range of persons rightfully using highways and other public places, and to exercise the utmost care to keep them in a safe condition. Geisman v. Missouri-Edison Electric Co., 173 Mo. 654, 73 S. W. 654.

“The substance of the rule laid down in the above case seems to be that almost any harm from electricity which could humanly have been avoided would render the company liable in damages.” (Emphasis ours.) Tennessee Electric Power Co. v. Sims, 21 Tenn. App. 233, 236, 108 S. W. (2d) 801, 803.

Other Tennessee cases dealing with liability of electric power companies, which we think are consistent with this opinion, are: City of Lawrenceburg v. Dyer, 11 Tenn. App. 493; International Harvester Co. v. Sartain, 32 Tenn. App. 425, 222 S. W. (2d) 854; Osborne v. Tenn. Electric Power Co., 158 Tenn. 278, 12 S. W. (2d) 947; Rogers v. City of Chattanooga, Tenn. App. 281 S. W. (2d) 504, and Kingsport Utilities Inc. v. Lawrence Brown, decided by Tennessee Court of Appeals (Eastern Section) December 23, 1954 (not yet reported).

In the instant case, it is insisted on behalf of defendant that the undisputed evidence establishes that the construction involved, was in accordance with the National Electrical Code and the Rural Electric Authority specifications, and, therefore, that defendant could not properly be held guilty of negligence. In view of the testimony of Ben White, one of defendant’s witnesses, who has been employed by the Tennessee Yalley Authority since 1939, that the T. V. A. does not put high tension wires near residences, and that T. Y. A. tries to keep people from putting residences along their lines, we think the issue should have been submitted to the jury. Even though it be assumed that the character of construction here involved was entirely proper for use along streets and highways, it does not necessarily follow that such character of construction was also proper for use across private property and on a line leading into a private residence. The minds of reasonable men might differ as to this, and the issues should, therefore, have been submitted to the jury.

Again, it is insisted on behalf of defendant, that at the time of the installation of the television set in the Cloud residence, the deceased, Walter Buel Coatney, was warned of the presence of the electric line, and that, therefore, he was guilty of such contributory negligence as would bar a recovery by his administrator. The basis for this contention appears in the testimony of Allen Kelly, a witness introduced by plaintiff. This witness testified that he had a radio and television business at which, he worked part time. He said that he was present at the Cloud residence just after the portable antenna had been placed on the Cloud property and while the Coatney hoys were running a lead line from same into the Cloud residence. He said he called the attention of the Coatneys to the electric line, as that would cause interference to the set. He said, however, that he did not know that the electric line was a high tension, dangerous line. Obviously, his warning was not directed against the danger of electrocution, hut was directed solely to the risk of impairing efficiency of the television set which was being installed. Under these circumstances, we cannot hold that as a matter of law, the plaintiff’s intestate was guilty of such contributory negligence as would bar the right of action for his death. At most, this was a question of fact for the jury, under proper instructions from the trial judge.

The reasoning of this opinion is consistent in all respects with a former opinion of this Court in the case of Turner v. Tenn. Valley Electric Co-op., 288 S. W. (2d) 747. That opinion is, at this time, still pending before the Supreme Court on petition for writ of certiorari; and, for that reason, it is not cited as an authority in the instant case.

For the reasons stated above, we think the trial judge was in error in granting a motion for peremptory instruction in favor of the defendant, in the instant case. This cause is, accordingly, reversed and remanded for a new trial consistent with this opinion.

The costs of the appeal will be paid by the defendant and appellee, Southwest Tennessee Electric Membership Corporation. Costs of tlie lower court will await tlie final determination of tlie cause.

Carney, J., concurs. Avery, P. J., (Western Section) dissents.