Probart v. Idaho Power Co. ( 1953 )

THATCHER, District Judge

(dissenting)-

The majority in this case hold that there was not enough evidence of negligence upon the part of the Power Company to permit the case to go to the jury. The case should go to the jury unless as a matter of law no recovery could -be had upon any view which properly could be taken of the evidence. Evans v. Davidson, 58 Idaho 600, 77 P.2d 661. “ ‘Where on undisputed facts reasonable and fair-minded men may differ as to the inferences and conclusions to be drawn, or where different conclusions might reasonably be reached by different minds, the question of negligence is one of fact to be submitted to the jury.’ ” Call v. City of Burley, 57 Idaho 58, 62 P.2d 101, 105; Byington v. Horton, 61 Idaho 389, 102 P.2d 652.

As stated in the majority opinion, compliance by the Power Company with the Safety Code constituted prima facie evidence of the absence of negligence, and the burden was upon respondent to prove some actionable negligence upon the part of the Power Company. The proof submitted was that in recent years (since the construction of the power line) building activity throughout Pocatello and vicinity had greatly increased; that the area in which contact with the wire occurred had -been built up extensively for residence and industrial uses, and in fact had ceased to be rural and had become urban; that the use of cranes of various sizes and heights for use in building construction had become a common practice; that these were used along, over and adjacent to the streets and alleys of the City and its environs in the course of ordinary every-day activity of the people of the community; that in the movement of cranes over and along the streets and highways the booms were kept lowered and no contacts with power lines had occurred under such conditions; that upon at least two occasions, when the cranes were being used to move materials, contact had occurred between such cranes and lines of the Power Company; one expert witness testified that in his opinion the wires should have been insulated; two others testified to the contrary; that the Power Company had no actual notice of these two contacts, nor of the particular use to which the crane involved in this case was being put at the time of the contact; that the company did have such constructive notice of the building activity throughout Pocatello and vicinity, the change from rural to urban nature of the area in question, the increased use of cranes in construction, and the travel thereof over the City streets and highways, and of contacts with its wires, as reasonably may be imputed to it by reason of its being the sole utility supplying electric power in Pocatello and vicinity, and as may be imputed to it from the exercise of the duty it owed to inspect its lines and keep them in safe condition.

With the foregoing facts before it, the jury would normally be instructed in regard. to negligence as it' pertains to the Power Company. The majority opinion reiterates the rule laid down in Chase v. Washington Water Power Co., 62 Idaho 298, 111 P.2d 872, that the highest degree of care must be exercised by those engaged in the generation and distribution of electricity". This would be a fair instruction to give to the jury. The following, also taken from the majority opinion would seem to be a fair instruction: “The duty to insulate is not an absolute duty. However, the exercise of due care requires an electric company to insulate all wires carefully and properly where there is reasonable probability of human contact therewith or, in the alternative, such wires must be located so as to be comparatively speaking, harmless; if the company maintains its wires at such height above the ground that there is no reason to anticipate or probability that people using the highways or the area oyer which the wires are suspended will come in contact with them, insulation is not required”.

Also the following: Compliance with a statute or a code does not relieve one from the duty of exercising ordinary care under the circumstances.

Likewise the following, one of the jury instructions approved by this Court, would also seem to be appropriate: “Negligence may be defined to be the omission or want of ordinary care; and ordinary care is such care as an ordinarily prudent person would exercise under like circumstances. Negligence may consist in the failure to do that which an ordinarily prudent person would do under the circumstances, or the doing of that which an ordinarily prudent person would not do under the circumstances. The care to be exercised to be ordinary care must be proportioned to the danger reasonably to be apprehended from the circumstances. What might be ordinary care under certain circumstances would be negligence under other circumstances. The standard by which ordinary care is gauged is the question: ‘What would an ordinarily prudent person have done under like circumstances?’. If a person acted as an ordinarily prudent person would act under the same circumstances and conditions, there is no negligence. If a person failed to act as an ordinarily prudent person would have acted under the same or like circumstances and conditions, then there is negligence”.

Having received these instructions, it becomes the duty of the jury, who are the “reasonable and fair-minded men” who must determine the question of negligence or non-negligence, to consider the facts in the light of the instructions and try to reach an agreement.

As an aid to the jury in the performance of their duties, counsel might well argue, in the words of the instruction, that “what might be ordinary care under certain circumstances would be negligence under other circumstances”; that what might be ordinary care in a rural area might be negligence in an urban area; that it might not be ordinary care, for instance, for the Power Company to maintain its uninsulated wires at a height of only twenty feet above the ground (as permitted by the Code) in downtown Pocatello, while it might be ordinary care for the Company to maintain its wires at such height at the intersection of Balsam and Pole-Line Roads (likewise permitted by the Code); that it might be negligence to maintain said wires at such height at the junction of Balsam and Pole-Line Roads, while it might not be negligence to maintain the wires at the height along a country lane; that maintenance of the wires at a given height, allowed by the Code, might be ordinary care where few cranes are used in building construction, and yet be negligence where many cranes are used; that the increase of population, resulting in the increased use of the streets, might alone be such a change in conditions that what was ordinary care before, now becomes negligence.

Counsel might also argue to the jury that if there occur a great increase in the use of the streets and in the congestion of ■buildings, both residential and industrial, in a rural area, a reasonable man might take such factors into consideration in determining whether contact between an electric wire and the boom of a crane might not be a reasonable probability, whereas such contact in open country might be considered no probability, but merely a possibility; that the fact that two cranes had come in contact with power lines in Pocatello in recent years might be considered by the jury as taking such occurrence from the realm of possibility into the realm of probability. Counsel might well argue that contact between the boom of a crane and a Power Company wire can as readily be foreseen as could the contact between two hawks fighting in the air over the Power Company’s lines, as occurred in the case of Chase v. Washington Water Power Co., supra.

Yet the majority of this Court would have the trial Judge say to the parties, in effect, that contact between a crane and a wire under the circumstances in evidence before the jury could not reasonably be foreseen and that fair-minded men could not reasonably differ on that question; or, in effect, say to the parties that even though such event could reasonably be foreseen by fair-minded men, yet, as a matter of law, there was no negligence because the Power Company had complied with the Safety Code. How, one might ask, could the trial Judge make such statement in the light of the conflicting opinions of the expert witnesses alone? Could the trial Court or this Court say that the experts were not fair-minded, reasonable men ?

For the foregoing reasons I must dissent.