Mississippi Power & Light Co. v. Merritt

Anderson, P. J., delivered the opinion of the court. On October 3, 1941, the appellant Power Company was engaged in making an extension of its electric service at a place in Rankin County. James A. Merritt, one of its *806 linemen engaged in the work at the top of one of its poles, was electrocuted by a high powered wire of 8,000 volts. The appellees, his wife and two minor children, brought this actiop against the Power Company and Elam, its foreman, charging that his death was caused by the negligence of the company. The trial resulted in a verdict and judgment for $20,000 against both defendants, from which they prosecute this appeal. The grounds of liability relied on were that while Merritt was doing the work the Power Company negligently failed to de-energize the high powered wire, either by turning off a switch nearby or requiring Merritt to insulate the wire with a rubber blanket. The assignments of error worthy of consideration are only two, that the court erred in refusing the appellants ’ request for a directed verdict and in refusing to grant a new trial on the-ground that the verdict was excessive. We will consider the two propositions in the order stated. The following were the facts, either proven by evidence without conflict or substantial believable evidence where there was conflict: The crew engaged in the work consisted of Elam, the foreman, and the deceased Merritt, and Ammons and Sullivan, linemen. The pole on which Merritt was at work was about twenty-five feet above ground and about six or seven inches in diameter. At the top was a high powered wire carrying 8,000 volts, below that was a neutral wire, and below that another wire not dangerous to come in contact with. And in addition there was a guy wire on which Merritt had been working which was only eight or ten inches from the high powered wire. In order to climb the pole Merritt had attached to his shoes sharp spikes, and to keep him from falling while climbing, after he reached the top or while coming down he was attached to the pole by a belt — the belt encircling him and the pole. When he had completed his work and was starting down, the spike in one of his shoes slipped out of its socket, which according to the evidence sometimes happens, causing him to dangle back in his belt and involuntarily throw up one of his hands, which came *807 in contact with the high powered line, resulting in his death. His death could have been avoided in two ways, (1) three hundred yards away there was a switch by means of which the current in the high powered wire could have been cut off without interfering with service to any of the Power Company’s patrons; (2) oil the ground nearby in a truck belonging to the Power Company was a rubber blanket which could have been thrown over and insulated the high powered wire while Merritt was at work. To have used that, however, it would have been necessary for him to have a helper up the pole with him. When the accident occurred the foreman Elam was standing within a few feet of the pole and the other three linemen were standing nearby. Elam as foreman had charge of all the ways and means of doing the work and the linemen under him, including Merritt, had to obey his instructions and directions. Without having the current in the high powered wire cut off at the switch or suggesting that it be done, and without instructing Merritt to use the rubber blanket, Elam directed Merritt to climb up the pole and do the work, fully aware of the danger to him from the high powered wire. The evidence showed that Merritt was a lineman of several years experience, that he was thirty-four years of age, six feet and two inches in height and weighed 180' pounds, and was in good health,' and therefore with a long life expectancy for his age. He was getting a salary of $167.50 a month with overtime. He left in addition to his wife two young children, one a little less than three years old and one two months old. The main contention of the Power Company is that Merritt’s failure to either cut off the switch or use the rubber insulation himself, was the sole proximate cause of the injury. On the other hand, it is contended that it was the duty of the foreman Elam to require that one or the other be done, which Elam failed to do. As above stated, Elam required Merritt to go up the pole and do the work without suggesting or requiring either of those precautions being taken. “It is the settled law in this state that public utility corporations in handling and *808 controlling the subtle and extremely dangerous agency of electricity shall be held to the highest degree of care which shill and foresight applicable to that business can obtain.” Henry v. Mississippi Power & Light Co., 166 Miss. 827, 146 So. 857. And the duty of the master in that respect is absolute and can not be delegated to a fellow servant. Masonite Corp. v. Lochridge, 163 Miss. 364, 140 So. 223, 141 So. 758. “If the wires carry a strong and dangerous current of electricity, so that negligence will be likely to result in serious accidents, and perhaps death, or if a harmless wire is in dangerous proximity to a high tension wire, a very high degree of care, indeed the highest that human prudence is equal to, is necessary.” Croswell’s Law of Electricity, Sec. 234, pages 205 and 206. In considering this question it should be kept in mind that Sections 511 and 512 of the Code of 1930 abolish contributory negligence as a defense and make negligence and contributory negligence questions for the jury to determine, and that Section 513 of the Code of 1930 abolishes the doctrine of the assumption of risks. “The risk that the servant assumes is the danger incident to the service which remains after the master has exercised reasonable care for the safety of the servant.” Wilbe Lbr. Co. v. Calhoun, 163 Miss. 80, 140 So. 680, 682. Evidently the work Merritt was engaged in had a good deal of complication about it. Where the work is complicated “the mere fact that a servant may happen to know as much as the master knows about the instrumentality does not relieve the master from furnishing the servant with a safe instrumentality. ” Hercules Powder Co. v. Tyrone, 155 Miss. 75, 124 So. 74, 77, 475. Standard Oil Co. v. Pranks, 167 Miss. 282, 149 So. 798. The fact that Merritt involuntarily threw up the hand that came in contact with the high powered wire is no defense. Planters’ Oil Mill v. Wiley, 154 Miss. 113, 122 So. 365. We cannot say with a sufficient degree of confidence that the verdict was too large. The record in this case, *809 including the instructions, shows that the case was tried on the theory that either the Power Company’s alleged negligence was the sole proximate cause of the injury or the negligence of Merritt was the sole proximate cause of his injury. Therefore, the language used by the court in Avent v. Tucker, 188 Miss. 207, 194 So. 596, 602, is applicable: “In the case at bar, neither the plaintiff nor the defendant in the court below requested instructions based upon the comparative negligence statute so that the jury in this case was not required to apportion and compare the damages on account of the negligence of the parties. We have already said that Tucker was very negligent in driving rapidly without having his car under control into and upon an intersection. We have also said that the jury was authorized to find that the Avents were negligent in driving in and upon the intersection under the circumstances without looking to the south, from which Tucker came. The jury was not directed to apportion damages as to which the court could not voluntarily instruct the jury; the plaintiff was not required by law to so instruct the jury; and the defendants saw fit not to so have the jury instructed by the court. As to whether or not the defendant chose to invoke the comparative negligence statute, Section 511, Code of 1930, was a matter of strategy on the part of the defendant in the court below which they determined so that this court cannot consider the comparative negligence of the parties in determining whether or not the verdict was excessive. See Mississippi Power Co. v. Thomas, 162 Miss. 734, 140 So. 227, 84 A. L. R. 679; Alabama and V. Ry. Co. v. McGee, 117 Miss. 370, 78 So. 296; Lindsey Wagon Co v. Nix, 108 Miss. 814, 67 So. 459.” Affirmed. Specially Concurring Opinion.