Goetz v. Green River Rural Electric Cooperative Corp.

398 S.W.2d 712, 1966 Ky. LEXIS 511

• Court: Court of Appeals of Kentucky (pre-1976)
• Decided: January 28, 1966
• Status: Published

Opinions

MONTGOMERY, Judge.

Joseph Earl Goetz appeals from a judgment in favor of Green River Rural Electric Cooperative Corporation based on an adverse directed verdict. It is necessary to consider only the question of the negligence of the appellant.

Goetz was injured when a television antenna held by him came in contact with appellee’s high voltage line. It extended alongside and parallel to the property line of appellant’s lot. Appellant said that he had not seen and did not know of the existence and location of appellee’s line. He had recently purchased the property and prior to the date of injury had been on the premises three times, twice when it was dark and once on another occasion when he did not alight from his car.

Appellee’s 7200 volt line was carried by two wires, one above the other, on poles and was 28.2 feet above the ground. At the north end of appellant’s house attached to the eave of the garage there was a tripod television tower which was 34.2 feet in height. The two wires which made up the power line were about six feet below the top of the tower and 6.9 feet from the tower.

The injury occurred on March 28, 1964, near 5 p. m. Appellant had unloaded furniture from a truck into the house and garage that afternoon. As appellant climbed the television tower to install a ten-foot antenna his back was turned toward the power line. When appellant started to insert the antenna in the tower, “A gust of wind come and blew it over on the wire and after that * * * that’s all I remember happening,” he said. He fell onto the garage roof and rolled off onto the ground. The circumstances were such that there seems to be no doubt that the antenna came into contact with the power line and appellant was thus injured.

He seeks to avoid any responsibility for the injury by saying that he had never seen the power line and had no previous knowledge of it. He admitted that there was no obstruction which would have barred his view and that he could have seen the power line if he had looked. Three photographs introduced as exhibits clearly reveal both wires which made up the power line, the television antenna, and its proximity to the power line. The injury occurred in broad daylight. It is hard to understand how anyone approaching the tower for the purpose of affixing an antenna to the top thereof could fail to see the power line. The fact that his back was to the power line as he climbed the tower does not explain why he did not see the line before he started to ascend. It is argued that the evidence showing that appellant rolled down the roof is sufficient to show that he had turned around and was facing the power line and should have seen it.

Appellant was twenty-six years of age and had a general knowledge of electricity and the danger therefrom. He was sufficiently acquainted with electricity to know how to affix an antenna to a television tower.

The duty to exercise ordinary care for one’s own safety is imposed on everyone. The care required to be exercised is measured by the circumstances of the particular case. The greater the hazard the greater the care required. McWilliams v. Kentucky Heating Co., 166 Ky. 26, 179 S.W. 24, L.R.A.1916A, 1224. The Court has had occasion to consider other cases in which the injured party sought to excuse himself from responsibility by saying that he did not see that which caused his injury which should have been seen. The duty to exercise ordinary care for one’s own safety requires that one must use his senses in a way that ordinarily prudent persons would do under similar circumstances. Thus, one will not be heard to say that he did not see or hear an approaching train when the facts make it certain that the train should have been seen or heard. Nashville, C. & St. L. Ry. Co. v. Stagner, 305 Ky. 717, 205 S.W.2d 493; McCarter v. Louisville & N. R. Co., 314 Ky. 697, 236 S.W.2d 933; Louisville & N. R. Co. v. Tomlinson, Ky., 373 S.W.2d 601. One who fails to exercise such care for his own safety is guilty of negligence which bars a right to recovery. Louisville & N. R. Co. v. Fisher, Ky., 357 S.W. 2d 683. Mental abstraction which is not due to any surrounding circumstances does not excuse inattention to a known danger or one that should have been seen. Vaughn v. Jones, Ky., 257 S.W.2d 583; Farris v. Summerour, Ky., 296 S.W.2d 708.

The danger inherent in power lines and electric lines generally needs no elaboration. In Electric Plant Board of City of Russellville v. Dotson, Ky., 304 S.W.2d , involving an electric wire, the Court said:'

“In two recent cases dealing with overhead wire, we have said that reasonable care demands that every precaution be taken to avoid contact with an electric wire. Vaught’s Adm’x v. Kentucky Utilities Co., Ky., 296 S.W.2d 459; and Carr v. Kentucky Utilities Co., Ky., 301 S.W.2d 894. * * * ”

See also Kentucky Power Co. v. Gevedon, Ky., 343 S.W.2d 381; Jackson County Rural Electric Coop. Corp. v. Massey, Ky., 346 S.W.2d 484.

In Jones v. Kentucky Utilities Co., Ky., 334 S.W.2d 263, a youth fifteen years of age was held guilty of negligence barring a recovery when he climbed on top of a bridge and came in contact with electric transmission wires located 43 inches above the top level girder and 13 inches from its edge. It was held that the youth was deemed “to be chargeable with an awareness of danger from the close electric wires.” It is concluded, therefore, that appellant’s failure to exercise his senses to ascertain the presence of the power line constitutes such negligence as to bar his right to recovery.

Appellant cites certain alien authorities which are not controlling in view of the domestic authorities. To sustain the proposition that the question of appellant’s contributory negligence was for the jury, he cites a number of cases which may be distinguished on the basis set forth in Kentucky Utilities Co. v. Black’s Adm’x, 244 Ky. 562, 51 S.W.2d 905, one of the cases cited by him. In the later cases of Jones, Gevedon, Massey, Dotson, Vaught, and Carr, recovery by the injured person was held to have been barred by his own' negligence. Dunn v. Jackson Purchase Rural Electric Coop. Corp., Ky., 374 S.W.2d 190, is distinguishable on its facts. Blackwell’s Adm’r v. Union Light, Heat & Power Co., Ky., 265 S.W.2d 462, was also relied on, but see Union Light, Heat & Power Co. v. Blackwell’s Adm’r, Ky., 291 S.W.2d 539, 87 A.L.R.2d 264.

Judgment affirmed.

MOREMEN, C. J., and MILLIKEN, J., dissent.