In Roberts v. Mississippi Power and Light Company, 193 Miss. 627, 10 So.2d 542, the sixth syllabus says: "An owner of land owes no duty to trespassers or licensees except to refrain from willful or wanton injury."Summary of this case from Wright v. Caffey
November 23, 1942.
Requisite "care" is that degree of care commensurate with appreciable danger appraised in terms of ordinary prudence and interpreted in the light of attendant circumstances.
Power company maintaining power line on its right-of-way through an open cultivated field was in duty bound to use requisite care to see that its wires should not come in contact with and damage any person or property reasonably likely to be exposed thereto along its right-of-way.
The degree of care requisite in maintenance of power line is such as reasonably safeguards against contacts which according to human knowledge and experience are likely to occur.
Where State Highway Department employee using long drilling auger to make soil tests along proposed highway route was electrocuted when auger came in contact with uninsulated power line about 13 1/2 feet from ground on electric company's right-of-way through open cultivated field, the electric company, which had no knowledge of the employee's presence, was not liable for the employee's death (Code 1930, secs. 1504, 4998).
Even though statutes justify act of State Highway Department employee in going on private land to make preliminary survey along proposed highway route, the statutes do not give highway employee any greater rights than belong to a licensee and the duty of owner of land to guard against injury in such case is governed by rules applicable to "trespassers" (Code 1930, secs. 1504, 4998).
An owner of land owes no duty to trespassers or licensees except to refrain from wilful or wanton injury.
Where State Highway Department employee was electrocuted when long drilling auger which he was using in making soil test along proposed highway route came into contact with power line, the representative of the State Highway Department through whom the employee was engaged was not liable for the employee's death.
APPEAL from the circuit court of Simpson county, HON. EDGAR M. LANE, Judge.
Currie Currie, of Hattiesburg, and R.C. Russell, of Magee, for appellants.
One of the erroneous grounds or theories underlying this motion and on which the court acted in granting said peremptory instruction was that the State Highway Commission or Department of the State of Mississippi and the appellee, Patterson, who was its agent in full and complete charge and control of said work, and the deceased, Jack Roberts, and his three companions in said work, were all trespassers or mere licensees on the right-of-way of the appellee, Mississippi Power Light Company, and that the only duty which said appellee owed them or any of them was not to wilfully or intentionally injure or kill them after discovering their peril, or their presence on said right-of-way.
We contend that they were not trespassers or mere licensees, any of them, but that they and all of them were rightfully and lawfully on said right-of-way in the lawful exercise of the sovereign power of eminent domain in the construction of a state highway, or work necessary in the proper location and construction of a state highway.
Thomas Winslow v. Gifford et al., 6 Cushings Reports 327; Edwards v. Law, Jr. (N.Y.), 63 Appellate Division Reports 551; Edwards v. Law, 71 N.Y. Sup. 1097; Mississippi Code of 1930, Secs. 1504, 4998.
Public utility corporations in handling and controlling electricity are held to highest degree of care which skill and foresight applicable to that business can obtain.
One who possesses or manages dangerous article or agency, such as electricity, explosives, and the like, must use highest degree of care and caution in guarding third persons against danger in respect to such articles or agencies so far as danger is not too remote according to usual experiences of mankind.
Farmers Gin Co., Inc., v. Leach, supra; Newark Electric Light P. Co. v. Garden, 78 F. 74; Davoust v. Alameda, 149 Cal. 69; Nelson v. Branford Lighting Water Co., 75 Conn. 548; Connell v. Keokuk Electric R. P. Co., 131 Iowa 622; Guinn v. Delaware A. Telephone Co., 72 N.J.L. 276; Keith v. Payne, 150 N.Y. Supp. 37; Lynchburg Telephone Co. v. Booker, 103 Va. 595.
It is manifest from a mere reading of the record and testimony in this case that there is positive, undeniable and direct causal connection between the negligence of the appellee, Mississippi Power Light Company, and the contact of said auger with the dangerous and deadly wires of said power company, which were negligently constructed and maintained too close to the ground, as shown by the evidence in this case, and the injury and death of the deceased.
When an ordinarily prudent man ought reasonably to have anticipated that injury would probably result from a negligent act, such act is considered the proximate cause of the injury. In this connection, it is not necessary that the particular injury be anticipated; where the injury is not the result of the intervention of a new agency, it may be considered the proximate result of an act of negligence, though it cannot be said that the particular way in which the injury was received was reasonably to be anticipated.
Cumberland Telephone Telegraph Co. v. Woodham, 99 Miss. 318, 54 So. 890; Mize v. Rocky Mountain Bell Telephone Co. et al., 38 Mont. 521; Giraudi v. Electric Improvement Co., 107 Cal. 120; Whitescarver v. Mississippi Power Light Co., 5 F. Supp. 948; Ratliff v. Mexico Power Co., 203 S.W. 232; Card v. Wenatchee Valley Gas Electric Co., 77 Wn. 564; Kribs et al. v. Jefferson City Light, Heat Power Co., 199 S.W. 261; Henry v. Mississippi Power Light Co., 166 Miss. 827, 146 So. 857; Law of Electricity, Curtis, p. 658, Sec. 438; Law of Electricity, Curtis, p. 657.
The question of natural and proximate cause was an issue of fact for the determination of the jury.
Ratliff v. Mexico Power Co., supra; Steindorff v. St. Paul Gas Light Co., 92 Minn. 496; Card v. Wenatchee Valley Gas Electric Co., supra; Brooks v. Consolidated Gas Co. of New Jersey, 16 Am. Neg. Rep. 127; Braun v. Buffalo General Electric Co., 200 N.Y. 484; Calusa Parrott Mining Smelting Co. v. Monnahan, 162 F. 276; Geismann v. Missouri Edison Electric Co., 173 Mo. 654; Wagner v. Brooklyn Heights R. Co., 74 N.Y. Supp. 809; Thomas v. Wheeling Electric Co., 54 W. Va. 395; Lexington Ry. Co. v. Fains' Admr., 24 Ky. Law Rep. 1443.
All questions of negligence and contributory negligence shall be for the jury to determine.
Mississippi Code of 1930, Sec. 512.
See also Hooker v. Federal Land Bank of New Orleans et al., 192 Miss. 352, 5 So.2d 688; New Orleans Northeastern R. Co. v. Jackson, 140 Miss. 375, 105 So. 770; Stricklin v. Harvey, 181 Miss. 606, 179 So. 345; C. C. Stores, Inc., v. Scarborough, 189 Miss. 872, 196 So. 650.
A.M. Nelson and Jackson, Young Friend, all of Jackson, J.B. Sykes, of Mendenhall, and Patterson Patterson, of Monticello, for appellees.
Appellants' decedent was a trespasser or at most a mere licensee, and the only duty owed by appellee company was to refrain from willful or wanton injury.
Ingram-Day Lumber Co. v. Harvey, 98 Miss. 11, 53 So. 347; Illinois Cent. R. Co. v. Arnola, 78 Miss. 787, 29 So. 768, 84 Am. St. Rep. 645; Yazoo M.V.R. Co. v. Cox, 132 Miss. 564, 97 So. 7; Robertson v. Yazoo M.V.R. Co., 152 Miss. 333, 118 So. 181; Yazoo M.V.R. Co. v. Mansfield, 160 Miss. 672, 134 So. 577; Murry Chevrolet Co. v. Cotton, 169 Miss. 521, 152 So. 657; Cato v. Crystal Ice Co., 109 Miss. 590, 68 So. 853; Allen v. Yazoo Mo. V.R. Co., 111 Miss. 267, 71 So. 386; Illinois Cent. R. Co. v. Lucas, 89 Miss. 411, 42 So. 607; Odom v. Gulf S.I.R. Co., 101 Miss. 642, 57 So. 626; Gulf, M. N.R. Co. v. Sparkman, 180 Miss. 456, 177 So. 760; Owens v. Yazoo M.V.R. Co., 94 Miss. 378, 47 So. 518, 136 Am. St. Rep. 579; Louisville, N.O. T.R. Co. v. Conroy, 63 Miss. 562, 56 Am. Rep. 835; New Orleans N.E.R. Co. v. Brooks, 175 Miss. 147, 165 So. 804; Kelly v. Benas, 217 Mo. 1, 116 S.W. 557, 20 L.R.A. (N.S.) 903; Louisville, etc., R. Co. v. Wade, 18 Ky. 549, 36 S.W. 1125; Preslar v. Mobile, etc., R. Co., 135 Tenn. 42, 185 S.W. 67; Thomas v. Cincinnati, etc., R. Co., 127 Ky. 159, 105 S.W. 379; Riedel v. West Jersey, etc., R. Co., 177 F. 374, 101 C.C.A. 428; McAlister v. Jung, 112 Ill. App. 138; Stansfield v. Chesapeake, etc., Tel. Co., 123 Md. 120, 91 A. 149; Mangum v. Hudson River Tel. Co., 50 Misc. 388, 100 N.Y.S. 539; Burnett v. Ft. Worth Light Co., 102 Tex. 31, 112 S.W. 1040; Newark Electric Light, etc., Co. v. McGilvery, 62 N.J.L. 451, 41 A. 955; Sullivan v. Boston, etc., R. Co., 156 Mass. 378, 31 N.E. 128; Lapouyade et al. v. New Orleans Ry. Light Co., 138 La. 237, 70 So. 110; McCaffey v. Concord Electric Co., 80 N.H. 45, 114 A. 395, 17 A.L.R. 813; Brown v. American Mfg. Co., 205 N.Y.S. 331, 209 App. Div. 622; Gherra v. Central Illinois Public Service Co., 212 Ill. App. 48; Robbins v. Minute Tapioca Co., 230 Mass. 387, 128 N.E. 417; Parshall v. Loper Gas-Electric Co. (Mich.), 199 N.W. 599; Johnson v. City of St. Charles, 200 Ill. App. 184; Williams v. Springfield Gas Electric Co., 274 Mo. 1, 202 S.W. 1; Godfrey v. Kansas City Light Power Co., 299 Mo. 472, 253 S.W. 233; Kesterson et al. v. California Oregon Power Co., 114 Or. 22, 228 P. 1092; Dunn v. Bomburge, 213 N.C. 172, 195 S.E. 364; Hafey v. Dwight Mfg. Co., 240 Mass. 155, 133 N.E. 107; Hafey v. Twinn Falls Power Electric Co., 250 Mass. 155, 133 N.E. 107; Borgins v. California Oregon Power Co., 84 Cal.App. 465, 258 P. 394; Griffis v. Village of Brady et al. (Neb.), 272 N.W. 306; American General Ins. Co. et al. v. Southwestern Gas Electric Co. (C.C.A. (Tex.) 5th), 115 F.2d 706; Webb v. Louisiana Power Light Co. (La.), 199 So. 451; Texas Louisiana Power Co. v. Webster (Tex.), 59 S.W.2d 902; 20 C.J. 348, Sec. 40; 45 C.J. 742, Sec. 132.
No negligence was shown on the part of appellees.
Appellee company could not anticipate the injury and death complained of.
Columbia G.R. Co. v. Coleman, 172 Miss. 514, 160 So. 277; Woodland Gin Co. v. Moore, 103 Miss. 447, 60 So. 574; Thompson v. Illinois Cent. R. Co., 105 Miss. 636, 63 So. 185; Illinois Cent. R. Co. v. Bloodworth, 166 Miss. 602, 145 So. 333; Burnside v. Gulf Refining Co. et al., 166 Miss. 460, 148 So. 219; Parker v. Charlotte Electric Ry. Co., 169 N.C. 29, 85 S.E. 33; Green v. West Penn. R. Co., 246 Pa. 340, 92 A. 341; Kempf v. Spokane I.E.R. Co., 82 Wn. 263, 144 P. 77; Witherby v. Twin State Gas Electric Co., 85 Vt. 189, 75 A. 8; Graves v. Washington Water Power Co., 44 Wn. 675, 87 P. 956, 11 L.R.A. (N.S.) 452; McMullan v. Addison Electric Ilban Co., 13 Misc. 392, 34 N.Y.S. 248; Girosky v. Allegheny County Light Co., 247 Pa. 304, 93 A. 338; Sweatman v. Los Angeles Gas Electric Corp., 101 Cal.App. 318, 281 P. 677; 18 Am. Jur. 448, Sec. 53; 20 C.J. 367, Sec. 52, et seq.
Compare Cumberland Telephone Telegraph Co. v. Woodham, 99 Miss. 318, 54 So. 890; Tri-State Transit Co. v. Martin, 181 Miss. 388, 179 So. 349; Brewer v. Town of Lucedale, 189 Miss. 374, 198 So. 42; Laurel Light R. Co. v. Jones, 137 Miss. 143, 102 So. 1; Williams v. City of Canton, 138 Miss. 661, 103 So. 811; Farmers Gin Co. v. Leach, 178 Miss. 784, 174 So. 566; Mississippi Power Light Co. v. Goosby, 187 Miss. 790, 192 So. 453; Mississippi Power Co. v. Thomas, 162 Miss. 734, 140 So. 227, 84 A.L.R. 679; Whitescarver v. Mississippi Power Light Co. (C.C.A. 5th Miss.), 68 F.2d 928; Seither v. Commonwealth Electric Co., 241 Ill. 252, 89 N.E. 425; Brown v. Panola Light Co., 137 Ga. 352, 73 S.E. 580; Corder v. Houston Light Power Co. (Tex.), 38 S.W.2d 606.
Argued orally by N.T. Currie and R.C. Russell, for appellants.
Plaintiffs brought suit for damages arising from the death of Jack Roberts, a member of their family, who 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 appreciable danger appraised in terms of ordinary prudence and interpreted in the light of the attendant circumstances," Supreme Instruments Corp. v. Lehr, 190 Miss. 600, 627, 199 So. 294, 1 So.2d 242, 245. The measure of prudence which is an element of the definition must in turn involve reasonable probabilities according to normal human experience. Such probability in turn involves not an absolute prescience but a degree of foreseeability which consists with normal experience and observation and which should equip the party sought to be charged with a prudence that envisages harm as a reasonable likelihood. Time, place and circumstances must be taken into account. Here, the place was that part of an open cultivated field which had been designated and used as a right of way for the stringing of the wires of the power company. It was in duty bound to use requisite care to see that its wires should not come in contact with and damage any person or property reasonably likely to be exposed thereto along its right of way. If it is to be held negligent with respect to plaintiffs' decedent, it must be held to have foreseen as a reasonable probability the engagement of deceased in some activity which would bring him in contact with its wire. Such presaged activity must of necessity have involved an actual spanning of the intervening height of 13 1/2 feet by both human and mechanical means whereby the deadly current could be conducted from the wire to the ground. While the case involves the highly dangerous medium of high voltage current, its danger consists solely in the probability of actual contact and the degree of care requisite in its maintenance is such as reasonably guards against contacts which according to human knowledge and experience are likely to occur. This test was applied in Burch v. Southern Bell Tel. Tel. Co., 178 Miss. 407, 173 So. 300, 302, where plaintiff was injured when he was caught by a telephone wire while riding on top of a load of hay stacked on a truck. This court held: "Telephone and telegraph lines crossing a highway must be high enough for the usual and ordinary travel in that area, including the usual and ordinary commercial uses of the highways, but they are not required on pain of liability to be high enough for extraordinary travel, as to which the traveler must keep a lookout. 62 C.J., p. 59. . . . But the roadway here in question was not a public thoroughfare but was a private way, and the owner of the premises was not required to anticipate and provide for that full extent of height required of a general public highway." Although this case does involve a high voltage wire, the requirement of contact to produce injury is present and the test of reasonable foreseeability equally applies.
However, there are many other cases in point dealing with electric wires. In Borgnis v. California-Oregon Power Co., 84 Cal. 465, 258 P. 394, plaintiff was injured when a fishing rod which he carried came in contact with an uninsulated electric wire which had been allowed to sag within reach of such rod. Almost identical facts are present in Hafey v. Turners Falls Power El. Co., 240 Mass. 155, 133 N.E. 107, and in Kesterson v. California-Oregon Power Co., 114 Or. 22, 228 P. 1092, lumber was stacked near a sagging power line and burned when the wire touched it. Other cases dealing with the nature and extent of responsibility for the maintenance of transmission wires are Griffis v. Village of Brady, 132 Neb. 498, 272 N.W. 306; American General Ins. Co. v. Southwestern Gas El. Co., 5 Cir., 115 F.2d 706; Webb v. Louisiana Power and Light Co., La. App., 199 So. 451, 453. In each of these cases recovery was denied and an important element in applying the test of probability or foreseeability was the location of the sagging wires and the absence of a duty on the part of the electric company to anticipate an unusual use of the property or its use by trespassers. An apt illustration of an unusual use of property is furnished by Webb v. Louisiana Power Light Co., supra. Here, the owner of the land was killed when a pipe of some 30 feet in length was withdrawn from a well without being disconnected and made contact with a transmission line. In stating the legal principle which resulted in nonliability, the court adopted the language of 18 Am. Jur., Electricity, Sec. 97, as follows, "That the duty of providing insulation should be limited to those points or places where there is reason to apprehend that persons may come in contact with the wires is only reasonable." In applying the rule to the facts, the court said: "Defendant could not have reasonably anticipated that decedent would withdraw from the ground connected well pipe of a length, here more than 30 feet, that would make contact with the transmission line. On the contrary, it could have reasonably expected that in the event of the pulling of the pipe from the well, a disassembling of it, joint by joint, would be the course pursued." This is an entirely distinct case from those like Mississippi Power Light Co. v. Goosby, 187 Miss. 790, 192 So. 453, when a sagging wire made contact with plaintiff's house.
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 applicable to trespassers. Milauskis v. Terminal R. Ass'n, 286 Ill. 547, 122 N.E. 78; Dunn v. Bomberger, 213 N.C. 172, 195 S.E. 364; Cooley on Torts, 4th Ed., Secs. 251, 440. It is unnecessary to cite authority to support the contention that an owner of land owes no duty to trespassers or licensees except to refrain from wilful or wanton injury. See Mississippi Digest, Negligence, key number 32, 33. There is no evidence that the defendant company knew of the presence of the decedent whose unfortunate death occurred shortly after he had begun work, and the case is therefore not governed by Farmers Gin Co. v. Leach, 178 Miss. 784, 174 So. 566. See 2 Rest. Torts, Sec. 345.
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, 121 Miss. 834, 84 So. 15; Seifferman v. Leach, 161 Miss. 853, 138 So. 563; Dobbins v. Lookout Oil Refining Co., 133 Miss. 248, 97 So. 546; Yazoo Mississippi V.R. Co. v. Downs, 109 Miss. 140, 67 So. 962; American Heating Plbg. Co. v. Keene, 5 Cir., 96 F.2d 170; cf. Lee v. Reynolds, 190 Miss. 692, 697, 1 So.2d 487, 489.