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Kentucky & West Virginia Power Co. v. Goodman

January 30, 1953


Combs, J., not sitting.


CULLEN, Commissioner. Dewey Goodman, while engaged in clearing brush and undergrowth from a strip of mountain land across which ran a high tension electric line of the Kentucky and West Virginia Power Company, chopped down a small tree, the top of which fell against one of the wires. Goodman either had hold of the tree with his left hand as it started to fall, or grabbed it as it began to fall, or took hold of it after it his the wire. The current ran down the tree and through his body into the ground, and he was electrocuted. There was no eyewitness to the accident, but a neighbor woman, immediately after the accident, heard a sizzling sound and upon looking in that direction saw Goodman with his hand on the tree, the top of the tree against the wire, and fire running down the tree. When other witnesses arrived at the scene, the tree had fallen to the ground, Goodman's body was lying just below the stump, and his axe was lying just above the stump. A burned mark on the tree indicated that Goodman's left hand had been in contact with the tree about four and one-half feet from its base.

Upon a jury trial, Goodman's administrator was awarded $15,000 damages for wrongful death. From the judgment for that amount entered against it, the power company appeals.

The power company maintains, first, that it was entitled to a directed verdict, because (1) the company was not shown to be negligent, (2) any negligence on its part was not the proximate cause of the accident, and (3) Goodman was contributorily negligent.

Negligence was sought to be established in failing to insulate the wires, in not placing the wires a safe distance above the ground, and in permitting underbrush and trees to grow up in and around the wires. The wires were three in number, carrying 44,000 volts. They were attached to wooden poles, about 20 feet in height. The poles had a single cross-arm at the top, with one wire attached to each end of the cross-arm, and the other to the top of the pole, with glass insulators. There were no 'high voltage' signs on the poles, and the wires were black in appearance, so that the lack of insulation was not obvious. The poles were 207 feet apart, and the wires were from 17 to 20 feet above the ground.

The land over which the power line ran was a strip of rough, hillside land, paralleling a road, with a width of around 300 or 400 feet between the road and the tall timber. It had been fenced for many years, and was used as pasture land by the owner. The power company's easement was not of any specified width, and did not grant the right of exclusive use, the landowner having reserved the right to use the land for agricultural purposes. Approximately 10 years before the accident, the power company had cleared the land below the power line, but since that time the land had grown up in brush and small trees. The land had a steep slope, of from 25 to 30 degrees, and the tree in question was located 10 feet above the power line, which runs parallel with the road.

The tree was a small poplar, 25 feet in height, with a diameter of four inches at the stump. From the stump to the closest wire was a distance of some 17 feet.

A few days prior to the accident, the landowner had cleared some of the land near the power line. Goodman, on the day of the accident, was continuing the clearing job, apparently under some kind of an agreement or understanding with the landowner as to using the land for pasturage. Goodman had cleared up the hillside, below the power line, and undoubtedly was aware of the presence of the wires, although it is not established that he knew the wires carried high voltage.

As concerns the negligence of the power company, there was no adequate showing of negligence in failing to insulate the wires. The proof tended to establish convincingly that wires carrying such voltage as these cannot be insulated. However, we are of the opinion that there was sufficient proof to take the case to the jury on the question of negligence in permitting the underbrush to grow up in and around the wires, and in failing to keep the wires a safe distance above normal objects on the surface of the ground.

In Kentucky -- Tennessee Light & Power Co. v. Priest's Adm'r, 277 Ky. 700, 127 S.W.2d 616, 619, this Court said that a power company was required 'to exercise the highest degree of care and skill known in the conduct of its business to prevent injury to persons at any place where they had a right to be.' In Green River R. E. C. C. v. Blandford, 306 Ky. 125, 206 S.W.2d 475, 477, we said:

'* * * The test is whether it (the injury) could have been reasonably foreseen or anticipated as likely to appear, taking into account the company's own past experience and the experience and practice of others in similar conditions. It is not that a particular act, which may have been unusual, could have been apprehended, but whether people would come in dangerous proximately and might be expected to do any reasonable thing while there from which injury would result. * * *'

In the case before us, we think that reasonable minds could conclude that the power company could reasonably have foreseen that a person clearing the underbrush might come in contact with the wires, being unaware of their presence because of foliage in and about them. While Goodman, because of the path he happened to follow in doing his work, probably did see the wires, that fact has nothing to do with the question of defendant's negligence.

As concerns proximate cause, it certainly could not be said as a matter of law that, if the power company was negligent in the respects hereinbefore discussed, such negligence was not a proximate cause of the accident. The mere fact that the wires were inanimate, and that some act by the plaintiff was necessary in order for the injury to occur, does not prevent the negligence of the defendant, in creating a dangerous situation, from constituting a proximate cause. Green River N. E. C. C. v. Blandford, 306 Ky. 125, 206 S.W.2d 475.

The most troublesome question in this case is that of contributory negligence. It appears that Goodman must have knowingly exposed himself to some danger, because he at least must have realized that there was some possibility that the wires carried high voltage electricity, although he may not have known that ...

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