Woodruff Electric Cooperative Corp. v. Daniel

472 S.W.2d 919, 251 Ark. 468, 1971 Ark. LEXIS 1165

• Court: Supreme Court of Arkansas
• Decided: November 22, 1971
• Docket: 5-5628
• Status: Published

Opinions

Frank Holt, Justice.

The appellee brought this action against the appellant to recover damages for injuries he sustained as a result of his contact with appellant’s power line. Upon interrogatories the jury found the appellee 25% negligent and the appellant 75% negligent and assessed compensatory damages at $100,000 and punitive damages at $10,000. Based upon this finding of comparative negligence, the court reduced appellee’s compensatory damages to $75,000 and approved the $10,000 punitive damages. From that judgment comes this appeal.

In a multiple point appellant first contends for reversal that there was no substantial evidence to support the jury’s finding that appellant was guilty of negligence that was a proximate cause of appellee’s injuries and, therefore, appellant was entitled to a verdict and judgment as a matter of law. Also, appellant contends that appellee’s negligence was equal to or greáter than appellant’s and, further, that he was a trespasser. We cannot agree with these contentions.

The appellee, 37 years of age, is a farm laborer with a third-grade education. His training and experience consists only of general farm work. On the day of the accident he was driving a tractor and planting a field with beans. Appellant’s power lines sagged so close to the ground that it impeded appellee’s work since he could not drive underneath them. The appellee stopped his tractor alongside the two lines, climbed up on top of the tractor’s chemical tanks and cut the first wire. Appellee was in a kneeling position and this wire was about in front of his chest. After cutting this wire the appellee dismounted and wrapped the cut wire around a nearby post at the road. Appellee then moved his tractor 25 or 30 feet and proceeded to attempt to cut the remaining wire while he was kneeling on the tractor’s chemical tanks. This uninsulated 7,620 volt wire rendered appellee unconscious and caused bodily injuries. It was necessary to amputate a part of his left arm.

By virtue of a utility easement (the terms of which are not in evidence) the appellant had maintained the power lines for about 20 years. The lines stretched across this field for a distance of about 500 feet from the road to a tenant house. The lines were supported by three poles; namely, one at the road, one in the middle of the field, and one at the tenant house. The lines had been disconnected at the house for approximately two years preceding the incident. The tenant house had not been occupied during that time. About 8 months before the accident appellee’s long-time employer had asked the appellant to remove the lines. About 6 months before the accident, following a heavy freeze, the appellant removed the middle pole from the field. As a result, the lines, about two feet apart, sagged to below the 15-foot height required by the National Electrical Safety Code. About three days before the accident, appellee’s employer renewed his request to appellant that the unused lines be removed. There was evidence that the lines sagged as low as 8 to 10 feet above the ground. In hot weather (the accident occurred in June) the lines would sag more than in cold weather. Evidence was adduced that appellee’s employer had warned all of his employees, including appellee, not to bother the electric lines running across the field and that coworkers also warned appellee on the day of the accident not to cut the wires. Appellee denied that he was warned by anyone that the power lines were energized and, further, that at the - time he cut one line and tried to cut the other one his tractor motor was running and he would have been unable to hear any warning from his coworkers in his vicinity. According to him, he did not know the line was energized and there were no signs posted that it was a dangerous line. Appellee knew that the house had been vacant for two years and it was his belief that the energized line was dead. Appellee’s employer, as well as a coworker, testified they believed that. since the house had been vacant for two years and the middle or field pole had been removed, that the line was disconnected and abandoned and, therefore, dead. It appears undisputed that one of the two lines was not energized.

There was testimony by a witness who was familiar with the National Electrical Safety Code (in effect in our state by Public Service Commission regulation) that any height below 15 feet is a violation of the code; that a span of wire in excess of 550 feet, which existed after removal of the middle pole, was a violation of safety regulations; and that the failure to maintain the line so as to reduce hazard to life in as far as practicable was also a violation. The appellee also adduced evidence that the appellant had left electricity “in the wires because lots of people were stealing wire up around Forrest City, and that they left a lot of electricity in there to keep them from stealing it.” On the day of the accident appellant’s employees appeared at the scene and disconnected the energized line at the roadside pole within two or three minutes and removed the wire from the premises.

Upon a motion for a directed verdict it is well settled that the evidence and all reasonable inferences deducible therefrom must be viewed in the light most favorable to the plaintiff and given its highest probative value and then, if there is any substantial evidence tending to establish the issue it must be presented to the jury. Hardeman v. Hass, 246 Ark. 559, 439 S. W. 2d 281 (1969); Glidewell v. Arkhola Sand & Gravel Co., 212 Ark. 838, 208 S. W. 2d 4 (1948); Wortz v. Fort Smith Biscuit Co., 105 Ark. 526, 151 S. W. 691 (1912). Furthermore, the issue of negligence is a question for the jury where fair-minded men might honestly differ in their conclusion from the facts in evidence, whether controverted or uncontroverted. Harkrider v. Cox, 230 Ark. 155, 321 S. W. 2d 226 (1959); St. Louis, I. M. & S. Ry. Co. v. Fuqua, 114 Ark. 112, 169 S. W. 786 (1914).

We have long recognized the rule that the very nature of the business of an electric company requires it to use a high degree of care in the erection, maintenance, operation, and inspection of its equipment which is used in the transmission of its electric power, so as to prevent injury to one likely to come in contact with the power line. Arkansas Power & Light Co. v. McGowan, 227 Ark. 55, 296 S. W. 2d 420 (1956). In Arkansas Power & Light Co. v. Cates, 180 Ark. 1003, 24 S. W. 2d 846 (1930) we recognized that:

“The duty of an electric company in reference to keeping its appliances in safe condition is a continuing one. Not only must it exercise a high degree of care in the original selection and installation of its electric apparatus, but thereafter it must use commensuate care to keep the same in a proper state of repair. The obligation of repairing defects does not mean merely that the company is required to remedy such defective conditions as are brought to its actual knowledge. The company is required to use active diligence to discover defects in its system. In other words, an electric company is bound to exercise due care in the inspection of its poles, wires, transformers and other appliances.”

When we apply these well recognized and long established rules of law, we are of the view that in the case at bar there was a submissible issue for the jury’s consideration as to appellant’s negligence and, therefore, the court correctly denied appellant’s motion for a directed verdict. The questions of contributory negligence and the voluntary act of the appellee were questions of fact for the jury.

Nor can we agree with appellant that appellee was a trespasser. It is true that the appellant possessed a utility easement across the property for the purpose of constructing and maintaining its power line. The limitations of the easement are not before us. There was evidence that the power line was sagging to a height which was far below the recognized national standard for safety which was adopted by a state regulation. The appellee was a farm laborer who had the legal right to be upon and to cultivate the servient estate. The line sagged so low that it impeded the work being performed by the appellee to the extent he could not drive his tractor underneath the line. It appears that the appellent itself could be invading the rights of the servient estate since the maintenance of the line at this low height was unnecessary for appellant’s use of its dominant estate. See Davis v. Arkansas Louisiana Gas Co., 248 Ark. 881, 454 S. W. 2d 331 (1970); Arkansas Louisiana Gas Co. v. Maxey, 245 Ark. 15, 430 S. W. 2d 866 (1968).

We next consider appellant’s contention that the court erred in not permitting the jury to consider appellant’s affirmative defense that there was an assumption of risk by appellee when he touched the power line. We must agree with appellant. The doctrine of assumption of risk is applicable in cases of ordinary negligence and is not limited to mas ter-servant relationship. International Harvester Co. v. Pike, 249 Ark. 1026, 466 S. W. 2d 901 (1971); Bugh v. Webb, 231 Ark. 27, 328 S. W. 2d 379 (1959). In 38 Am. Jur., Negligence § 173, it is said: “The doctrine of assumption of risk in an action between persons not master and servant * * # is confined to cases where the plaintiff not only knew and appreciated the danger, but voluntarily put himself in the way of it.”

In the case at bar, as appellant observes, it is true that the appellee entertained the belief that the power line was not energized or he would not have attempted to cut it. Appellee, however, voluntarily came in contact with the sagging line and there was evidence that he was warned to stay away from it. We think it was a fact question as to whether appellee’s belief was reasonable in the circumstances and, therefore, the defense of assumption of risk was properly a matter for the jury to consider.

We also agree with appellant that the court erred “in permitting the appellee to ask questions and introduce evidence about other deaths and law suits involving appellant in past years.” The appellee was permitted to elicit from appellant’s witness that an individual was killed 11 years previously by coming in contact with a power line when he was riding a combine. The witness replied that he knew of the incident, however, it was not in his territory. The witness further testified that he was not aware of any other accidents like this occurring within his territory. This question was permitted, over appellant’s objection, on the basis that the jury could consider it for the purpose of determining punitive damages. Appellee cites to us no authority as to the relevancy or probative value of this testimony. He merely asserts it was admissible to prove punitive damages. In our view this evidence relates to a matter too remote in point of time and from the scene of the accident. Therefore, it is inadmissible and prejudicial.

We are also of the view that it was error for the trial court to submit to the jury the issue of punitive damages. The court instructed the jury that it could impose punitive damages if it found that appellant, “its agents, servants or employees, knew or ought to have known, in light of the surrounding circumstances, that their conduct would naturally or probably result in injury and that they continued such conduct in reckless disregard of the consequences from which malice may be inferred.” AMI 2217. Negligence alone, however gross, is insufficient to justify an award for punitive damages. There must be the additional element of wantonness or such a conscious indifference to consequences that malice can be inferred. St. Louis, I. M. & S. Ry. Co. v. McMichael, 115 Ark. 101, 171 S. W. 115 (1914). In the circumstances, we cannot say there is any substantial evidence that the appellant’s conduct was such as would characterize its action as impliedly malicious with respect to foreseeable injuries to appellee.

The appellant also asserts the court erred in not permitting the appellant to ask “leading questions” on cross-examination of a witness and also erred in refusing a mistrial because of comments and interruptions during cross-examination of this 17-year-old witness who observed the occurrence of appellee’s injury. During the cross-examination the court instructed appellant’s attorney to ask him questions instead of making state-merits to him. Appellant’s attorney contends that he was only asking leading questions which he had the right to do on cross-examination. Ark. Stat. Ann. § 28-705 (Repl. 1962). It was the position of the court that the cross-examiner was making statements rather than asking questions. Even though the cross-examiner has the right to ask leading questions, this does not accord him the right to in effect testify by making statements. In the case at bar, although the issue is close, we observe that the appellant has some merit in its contention. Since this issue is not likely to occur upon a retrial, we deem it unnecessary to discuss it further.

The appellant also asserts that the court erred in permitting the appellee to testify as to his understanding and belief as to whether the power line was energized. Since we hold that the defense of assumption of risk was a submissible issue to the jury, we are of the view that the appellee’s understanding and belief were permissible in evidence for the jury’s consideration. However, we agree with appellant that it was impermissible for appellee’s employer (or appellee’s coworker), to testify as to his belief about the power line being energized. Although it was permissible for the employer to testify as to any facts known by him leading up to the occurrence, this knowledge would not permit him to state his belief and opinion.

The appellant also contends that it was error to permit appellee’s employer to testify regarding conversations with unnamed truck drivers as agents of appellant. We cannot agree. There was only one power agency, the appellant, which had served this area for many years. The witness was very familiar with appellant’s trucks and equipment that served this area. He testified that definitely the unnamed personnel to which he communicated his request to remove the lines were appellant’s employees who were operating its equipment. Further, that one of appellant’s drivers responded that he had no authority to remove the lines and that he would call the nearby main office. The witness observed and heard this employee relay his request to appellant’s main office by short wave radio. In the circumstances we think this testimony was admissible.

We cannot agree with appellant’s contention that it was error to refuse its instruction which defined intervening cause for the jury’s consideration. We agree with the trial court’s view that there is no evidence “to show that there is any event intervening which was completely independent of the conduct of either party.”

Appellant further contends that it was error to permit an expert witness to testify when the facts on which he based his opinion had not been established. The appellant objected on the basis that the hypothetical question did not contain facts that had been established by the evidence. We cannot agree with appellant. In our view the facts presented in the hypothetical question were fairly established by the evidence. Furthermore, if appellant considered there were omissions of fact which were essential to the question propounded, these additional facts could be supplied to the witness on cross-examination. Shaver v. Parsons Feed & Farm Supply, Inc., 230 Ark. 357, 322 S. W. 2d 690 (1959).

For the prejudicial errors discussed, the judgment is reversed and the cause remanded.

Reversed and remanded.

Fogleman and Byrd, JJ., dissent in part.