Martin v. Arkansas Power Light Company

McHaney, J. On and prior to May 29, 1940, appellant, Clifton Martin, and his brother, DeWitt Martin, were in the employ of E. L. Bruce Company and Jack G-alloway as termite exterminators. On said date and also on May 27 and 28, they were engaged in such extermination work on the Bynum residence in Dermott, Arkansas. At about 9:30 a. m. of the 29th, while engaged in sawing a floor joist in two for the purpose of removing the damaged portion thereof, DeWitt Martin’s arm came in contact with an electric house wire under the house where they were 'working, from which he received a charge of electricity which caused his death. Clifton Martin attempted to extricate his brother and received injury in doing so. Thereafter separate suits were filed by appellants, Clifton Martin and Mrs. Bertha Martin, the latter as administratrix of her husband’s estate, to recover damages for personal injuries received by Clifton and for the death of DeWitt, against their employers and appellee. Nonsuits were taken by appellants as to the employers. The negligence charged and relied on was that the primary and secondary wires of appellee were strung through the tops of trees between the transformer and the Bynum residence; that current was permitted to pass from the primary wires to the secondary because of limbs on said trees coming* in contact with both which would render the transformer useless; -that a certain ground wire on the third wire of the service lines was not; properly grounded; and that the injury to Clifton Martin and the death of DeWitt Martin were caused directly by an overcharge of electricity passing- over the wires leading to the Bynum residence. Appellee’s answer was a general denial and pleas of contributory negligence and assumed risk. Trial to a jury resulted in verdicts and judgments for appellee. This appeal followed. A number of errors are assigned and argued for a reversal of these judgments which become unimportant, for the reason that, in our judgment., the court should have directed a verdict for appellee on the undisputed evidence and the physical facts and circumstances connected with the accident. These alleged errors, therefore, will not be discussed. As before stated, appellant, Clifton Martin, and his brother were not in the employ of appellee. The house wires in the Bynum residence, including- the wire under the house on which DeWitt Martin was electrocuted, did not belong- to and were not installed by appellee. The service or secondary wires leading from the transformer and serving the Bynum residence also served some twelve to fifteen other residences in that vicinity, all of which received or had available exactly the same amount of current at all times as the Bynum residence. The primary or high tension wires carried 2,300' volts of electricity. The transformer stepped this current down to 110 volts for domestic service, and there is no testimony that the transformer was out of order or that it was not properly functioning. There is testimony that both the primary and secondary wires passed through the tops of two trees and were adjacent to and may have at times come in contact with some of the branches of these trees which were between the transformer and the Bynum residence, and it is appellants’ theory that the current from the high tension line was -shorted or diverted to the service-line by reason of contact with these limbs, causing an excess voltage on the service lines which killed DeWitt Martin and injured Clifton. Their expert witness said that it was possible for the current to be so diverted and that, in his opinion, that is what caused the injury. He said that a green tree limb was not a good conductor, but that, in his opinion, it was good enough to divert sufficient current to cause injury and death. This appears to be appellants’ whole case, except some reliance is placed on an alleged defective ground wire on the third wire of the service circuit. We think the evidence given by the expert is lacking in definiteness and certainty. It is more or less speculative and conjectural. His conclusions depend upon assumed facts, such as a limb being a conductor and that if it were, why would not the current be grounded by the tree itself; that the same limb would have to contact both the primary and secondary wires at the same time and the latter, at a point not insulated; and that the tree would not ground the current. It is undisputed that the- Martins were working in close quarters, the floor joists being about thirty inches above the ground; that they had been working about two hours before the accident; that they were both wet with perspiration, indicating a hot day; that their clothes were wet and muddy; that while the ground under the house was dry, their wet clothes had contacted the dirt; that DeWitt Martin was sawing the floor joist when his right arm came in contact with the house wire, he sitting on his heels with his knees and toes on the ground. Whether his arm came in contact with an uninsulated portion or bare spot on the house wire is in dispute. According to several reputable citizens, Clifton Martin stated in their presence, shortly after he had gotten his brother out from under the house, that his brother’s arm contacted a bare portion of the wire after he had warned him of its bare condition just before the accident. But Clifton denied that he made any such statement. Whether he did or not is unimportant here, for, as we view it, there is no substantial evidence that an excess voltage came over the service wires, but that the accident was caused by the ordinary and usual voltage. It is undisputed that none of the electrical equipment in the Bynum residence was disturbed. No' fuses were blown, no lights were burned out, no motors were damaged — nothing happened. The same is true as to all the other residences serviced by the same secondary circuit, or at least there is no evidence that any such equipment was damaged. It was shown, and we know it to be a fact, that if there is a greatly excess current coming in over house wires, all lights that are turned on will be burned out and the fuses blown. Appellants virtually admit, at least they do not deny, that the light globe on an extension cord used by them under the house, was still burning after the accident, thus conclusively showing there was no excess current sufficient to burn out the lights on the circuit. It is well recognized that 110 volt current or even less will, under similar conditions as here shown to exist, cause death. It was so recognized and the authorities cited and quoted from in Oklahoma Gas & Elec. Co. v. Frisbie, 195 Ark. 210, 111 S. W. 2d 550, where we reversed the judgment and dismissed the cause on an allegation of excessive current because of a defective transformer. There the deceased was working under the house on wet or moist ground, while here the deceased and his clothes were wet to the extent that the dirt clung to them and appeared to be muddy. Thus the body was a good conductor in either case, and when contact was made with the live wire, it caused a short circuit through his body causing death. In that case tests were made to determine whether excess voltage was passing through the secondary wires and it was found there was not. Here, while no similar test was made, the fact that there was no excess current is shown by the fact that no lights were burned out, not even the one they were using, no fuses blown, no electrical appliances injured, and no interruption of service in any home so served. In the Frisbie case a screwdriver held in the hand of deceased was fused by the force of the current of 110 volts. As we there said: “To say that appellee’s intestate came to his death by reason of appellant’s negligence would require speculation not only as to the amount of current which proved fatal, but also as to the method by which such alleged excess charge entered the house. Neither allegation is established by any direct testimony, and res ipsa loquitur cannot be applied as a rule of law in a case where it is shown that the result — in this case death —might have been brought about by one of two or more speculative theories, neither of which is included or excluded by any affirmative evidence.” In Arkansas-Missouri Power Corporation v. Powell, 200 Ark. 309, 139 S. W. 2d 383, in reviewing the holding in the Frisbie case, we said: “In Oklahoma Gas & Electric Company v. Frisbie, 195 Ark. 210, 111 S. W. 2d 550, recovery was denied under the res ipsa loquitur doctrine where appellee’s intestate was killed while working under a building. He came into contact with electricity of sufficient voltage and amperage to produce death within a very short period of time. As in the case at bar, the primary wires leading to the transformer through which electricity was supplied to the house under which Frisbie was working carried 2,300 volts. Frisbie was lying on his back on wet or moist ground and accidentally made contact with exposed wires while attempting to use a screwdriver. The tool was burned, and there was testimony that not less than 1,000 volts would have been required to produce the fused condition. “The defendant showed that other residences and the administration building of the public school system were served from the transformer and there was no interruption of service. “In the instant case it is shown that the ‘Y’ hut continued on the transformer; that there were no repairs, and that the voltage .when tested shortly after accident was 112. “In the Frisbie case, Herzog’s Medical Jurisprudence is quoted as asserting that from 55 to 110 volts alternating current have frequently produced death, and may be regarded as dangerous.” We are, therefore, of the opinion that this case is ruled adversely to appellants by both the Frisbie and the Powell cases, and that the court should have directed a-verdict for appellee at its request. Not having done so, and the jury having returned verdicts for appellee, the judgment in its favor so entered, must be affirmed. It is so ordered.