Strickland v. Roosevelt County Rural Electric Cooperative

657 P.2d 1184, 99 N.M. 335
CourtNew Mexico Court of Appeals
DecidedDecember 9, 1982
Docket5645
StatusPublished
Cited by31 cases

This text of 657 P.2d 1184 (Strickland v. Roosevelt County Rural Electric Cooperative) is published on Counsel Stack Legal Research, covering New Mexico Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Strickland v. Roosevelt County Rural Electric Cooperative, 657 P.2d 1184, 99 N.M. 335 (N.M. Ct. App. 1982).

Opinion

OPINION

WOOD, Judge.

Joseph Strickland was delivering a truckload of soil conditioner to Carter’s farm. While unloading, with the bed of the trailer raised, the bed came close to overhead electric wires of the Electric Company (Roosevelt County Rural Electric Cooperative). Strickland was electrocuted. Plaintiff sought damages for wrongful death. The jury’s verdict was in favor of Carter; its verdict was against the Electric Company. Plaintiff appeals; the Electric Company cross-appeals. There are five issues: (1) admission of evidence as to the height of the overhead wires; (2) the refusal to add the defendants’ liability insurance carriers as party-defendants; (3) the damage award; (4) prejudgment interest; and (5) reimbursement of the compensation carrier.

Evidence as to Height of Overhead Wires

There were four overhead wires, three conducted electricity, one was a neutral wire. The trial testimony contains conflicting inferences as to which conducting wire was involved and the precise location of the accident. The briefs proceed on the basis that it was the west conducting wire and that the accident occurred in the third span of wire south of Carter’s house. In answering this point, we proceed on the same basis.

One of plaintiff’s three theories of negligence, submitted to the jury, was that the conducting wire at the point of the accident was too close to the ground. There was conflicting evidence as to how high this particular wire, at the particular location, should have been above the ground to comply with standards of the National Electrical Safety Code. The actual height of the wire, on the date of the accident, was obviously relevant to the issue of compliance with these standards.

Plaintiff’s witness, Davis, measured the height of the conducting wires, the neutral wire and several pole crossarms shortly before the trial. Davis was permitted to testify as to his measurements for the third span of wire and for the spans immediately adjacent on the north and south.

The accident happened September 8, 1976. Davis’ measurements were over five years later. The Electric Company contends that Davis’ measurement testimony was improperly admitted because there was a failure “to show a similarity of conditions ... [and] the evidence demonstrated a substantial change between the date of the accident and the date to which the testimony related.” In answering this claim we do not consider Evidence Rule 407, N.M.S.A. 1978; no one claims the rule is applicable.

A showing of substantially similar conditions was required; if the conditions at the time of Davis’ measurements were not substantially similar to the conditions at the time of the accident, Davis’ measurements would not have been relevant. Hodgkins v. Christopher, 58 N.M. 637, 274 P.2d 153 (1954); Dahl v. Turner, 80 N.M. 564, 458 P.2d 816, 39 A.L.R.3d 207 (Ct.App. 1969); see Corcoran v. Traction Co., 15 N.M. 9, 103 P. 645 (1909).

Witnesses called on behalf of the Electric Company testified that the only change between the date of the accident and the date of Davis’ measurements was that poles, broken in a severe wind storm, had been replaced. The evidence was conflicting as to how many poles were replaced — two or four. There was also a conflict in the evidence as to which poles were replaced; there was general agreement as to replacement of the south pole of the span where the accident occurred; the testimony conflicted as to replacement of the north pole. There was evidence that both old and new poles had a length of 35 feet.

As to the effect of replaced poles on the height of the wire, two items were mentioned. One item was that in the hurry to replace the broken poles, the new poles might have been set deeper into the ground. One Electric Company witness testified that this would explain the difference between Davis’ measurements and measurements by representatives of the Electric Company. However, there was no evidence that the replaced poles were, in fact, set deeper, only speculation. The second item was that the crossarms on the new poles were six inches lower than the crossarms on the replaced poles and that this would change the height approximately six inches all along the wire. There was no testimony by which the height of the crossarms, before and after the replacement, can be compared. However, Carter testified that he did not think the new poles affected the vertical height of the wires, that so far as he knew the wires were the same as before.

There was testimony by witnesses, at the scene within a short time after the accident occurred, as to the height of the wires at that time. This testimony varies from 20 to 30 feet. Davis’ measurements of the west conducting wire, whether at mid-span or higher points, in the three spans measured, varied from 19 feet 8V2 inches to 21 feet 7Vi inches.

There was evidence that the Electric Company took height measurements on September 10, 1976, but had no record of these measurements and, anyway, these measurements were in the wrong place. The Electric Company remeasured on September 16,1976. There was testimony that on the span where the accident occurred, the height of the west conducting wire at mid-span was 22 feet 6V2 inches, and at point of contact the height was either 24 feet 6V2 inches or 25 feet. However, subsequent to these measurements, the Electric Company supplied different information to the adjuster for the compensation insurance carrier of Strickland’s employer. The adjuster was told that the high part of the span where the accident occurred was 22 feet 5 inches and the low point was 19 feet 7- inches.

Davis’ measurements five years after the accident were within the range of testimony as to wire height at the time of the accident. Because Davis’ measurements were substantially similar to some of this testimony, because there was evidence of no height change resulting from the replaced poles, and because of conflicts as to which poles were replaced, we cannot say the trial court abused its discretion in admitting Davis’ measurements as evidence.

In the trial court, the Electric Company did not object to Davis’ testimony “so far as it relates to the height of the wires at this time”; rather, the Electric Company opposed admission of Davis’ measurements “to discredit the measurement of the cooperative people taken at the time or within a week of the accident, I do object to that.” Davis’ measurements, being substantially similar, were relevant and were properly admitted. The measurements not only tended to prove height at the time of the accident, they also went to the credibility of the Electric Company’s measurements. Tyler v. Dowell, Inc., 274 F.2d 890 (10th Cir.1960).

Refusal to Add a Liability Insurance Carrier as a Party Defendant

Security (Security Insurance Company of Hartford), the compensation insurer for Strickland’s employer, paid compensation benefits for Strickland’s death. Security was permitted to intervene in the wrongful death action “to assert its claim to a right of reimbursement” in the event of a judgment in favor of plaintiff. Plaintiff moved that the liability insurance carriers of both defendants be added as defendants because Security had intervened as a plaintiff. This motion was denied.

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Bluebook (online)
657 P.2d 1184, 99 N.M. 335, Counsel Stack Legal Research, https://law.counselstack.com/opinion/strickland-v-roosevelt-county-rural-electric-cooperative-nmctapp-1982.