Marsee v. Kentucky Utilities Co. , 259 S.W.2d 45 ( 1953 )

CULLEN, Commissioner.

Charles Marsee, while standing under a clump of small trees near a pathway passing through a field, during a rain and wind storm, was killed by some electrical force. Contending that the electrical force was not lightning, but was a charge of electricity from high-voltage lines of the Kentucky Utilities Company which crossed the field close to the clump of trees, Marsee’s administrator sued the company for damages for wrongful death. A directed verdict was given for the company, -and the administrator appeals.

The first ground for reversal asserted by the appellant is that the court erred in directing a verdict for the company. We. have examined the record carefully and find that the plaintiff’s evidence was sufficient only to ‘create a mere inference, surmise or speculation that the death was caused by electricity passing from the high-voltage lines through the trees. None of the normal physical evidences of such an occurrence, .-such as the .scorching of leaves or limbs of -the trees,- were shown;' - Taking the evidence' in the light most favorable to the plaintiff, it shows only that the death might have been caused -by electricity passing- from the high-voltage lines, or by lightning. Actually, the evidence tends to be convincing that lightning caused the death. Under these circumstances, it was proper for the court to direct a verdict for the company. Spencer’s Adm’r v. Number Four Superior Coal Co., 228 Ky. 799, 16 S.W.2d 168; Louisville Gas Co. v. Kaufman, Strauss & Co., 105 Ky. 131, 48 S.W. 434.

It is next contended that the court erred in not granting a new trial on the ground of newly discovered evidence. The new evidence consisted of testimony of three witnesses that they heard a loud noise at the time of Marsee’s death and saw a large ball of fire come along the transmission line and jump into the top of the clump of trees. This evidence does not lend any support to appellant’s theory that Marsee’s death was the result of regular electrical energy passing from the transmission line to the trees; on the contrary, it tends to buttress the company’s claim that the death was caused by lightning.

The judgment is affirmed.