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ELLIOTT v. BLACK RIVER ELEC. CO-OP.

July 11, 1958

ARA H. ELLIOTT, ADM'X, RESPONDENT,
v.
BLACK RIVER ELECTRIC COOPERATIVE, APPELLANT.



The opinion of the court was delivered by: Legge, Justice.

July 11, 1958.

On June 9, 1956, while engaged in pulling the lift rod from his well, J. Marvin Elliott, a farmer of Kershaw County, was killed by a disruptive discharge of electricity from a highly charged uninsulated wire maintained by Black River Electric Cooperative, Inc., directly above the pump house. Plaintiff, as administratrix of his estate, for the benefit of herself, as his widow, and their seven children, brought this action against the Cooperative for his alleged wrongful death. The case was tried at the November, 1957, term of the Court of Common Pleas for Kershaw County, before the Honorable Steve C. Griffith, Presiding Judge, and a jury. Defendant's timely motions for non-suit and direction of verdict were overruled, and the case was submitted to the jury, who found for the plaintiff $106,100.00 actual, and $5,000.00 punitive damages. Thereafter, defendant's motion for judgment n. o. v. or for new trial was denied; and defendant now appeals on numerous exceptions, to which we shall later refer.

Mr. Elliott, who was a carpenter as well as a farmer, built his home in 1940 or 1941. At that time there was no electricity on the property, and water was obtained by means of a hand pump. In 1943, another hand pump was put down a short distance from the house. In 1947, the defendant brought electric current from its line on the highway to a transformer pole that it erected near the house, and, from that pole ran a two-wire line to the house. Some time later, when the Elliotts installed an electric stove in their home, a third wire was run. Under date February 4, 1947, Mr.

Elliott executed the usual deed granting to the defendant the right and easement to enter his land and construct, operate and maintain thereon "an electric transmission or distribution line or system." About that time the hand pump last mentioned was replaced by an electric pump, and a pump house was built around it. The walls of the pump house were of brick and about four and a half to five feet in height; its roof was removable; its floor was of dirt and a few inches below ground level.

In 1950, electricity being desired at a Forestry Commission fire station some seven-tenths of a mile away, defendant's representative obtained from Mr. Elliott permission to run a line from the transformer pole near his house to the station, and the defendant located and constructed this line, consisting of two wires, one above the other. The upper wire carried 7,200 volts; the lower was a neutral, or ground wire. They passed over the approximate center of the pump house, the lower wire being at that point 18 feet 9 inches, and the upper, or "hot", wire 21 feet 6 inches, above the ground.

The well was 41 feet deep, and consisted of a two-inch pipe, inside of which was a lift rod about three-eights of an inch in diameter. The casing pipe was in three sections, the bottom one being 21 feet long and each of the upper two 10 feet long. The pump rod, or lift rod, likewise consisted of two ten-foot sections on top of a twenty-one foot section.

On the morning of June 9, 1956, the pump not bringing up any water, Mr. Elliott, together with his son John, aged 23, and a farm hand, McNeely, aged 21, undertook to pull up the casing and lift rod and replace the valves that were attached to the bottom of the lift rod. The roof of the pump house having been removed, and the electric motor taken off the top of the casing, a tripod of rough timber, 2" x 4" x 16', was put over the pump house, so that after the two ten-foot sections had been disconnected and removed, the twenty-one foot section could be guided through the apex of the tripod

(which was six or seven feet above the top of the pump house) so as to avoid the wires overhead. Two large timbers, one 2" x 8" and the other 4" x 12", were placed across the top of the pump house and leveled, so that John Elliott and McNeely could stand on them and feed the 21-foot section, as was lifted out of the well, through the apex of the tripod.

The lift rod was thus taken out and replaced, with new valves; but after brief operation the pump "sandlocked," and the lift rod "froze." Mr. Elliott then borrowed a neighbor's jack, and they jacked up the casing, cut the lift rod off with a hacksaw at the top of the 21-foot section, and removed both casing and lift rod. It was then about mid-day, and since it was necessary to send to the nearby village of Cassatt to buy new casing, lift rod, valves, cylinder and point, it was decided to stop work until after dinner. Mr. Mozier, from whom the new equipment had been purchased, came over after dinner to help. The new casing and lift rod were put down, after some difficulty because of sand; they were pulled up, and again put down, but the pump was still not operating properly, and it was concluded that the cylinder was not tight enough. To correct this required pulling the lift rod out again. It was then about 8:30 p. m. Inside the pump house were Mr. Elliott and Mr. Mozier; light there was furnished by a 100-watt electric bulb at the end of a "drop-cord" run from the back porch of the house. The two 10-foot sections of the lift rod having been disconnected and removed, young Elliott and McNeely stood, facing each other, on the timbers that had been laid across the top of the pump house. Their job was, as it had been during all of the previous operations, to feed the lift rod through the apex of the tripod. A 100-watt bulb with a large reflector clamped to one of the timbers on top of the pump house, was directed upward to illuminate the apex of the tripod and the wires above it.

That morning it had rained; and the evening was foggy. Water was on the dirt floor of the pump house, where Mr. Elliott was working. At about 9:00 o'clock, as the 21-foot section of the lift rod was coming up (Mr. Elliott lifting from below, young Elliott, on top, lifting and guiding, McNeely helping to guide it), the current from the 7,200 volt wire arced to the lift rod. Young Elliott, McNeely and Mozier were knocked down. Mr. Elliott was killed.

Both Mrs. Elliott and John Elliott testified that the decedent had no special knowledge of electricity, and had never worked with it; that he was afraid of it; that he had not done the electric wiring of the house or any electrical installation in it; and that in the course of his carpentry on houses of others he would have nothing to do with the electrical work. It was testified also that it is a commonplace occurrence that the valves on pumps in rural areas need to be repaired or replaced about once a year; and that in such areas the 21-foot section of casing and lift rod is standard. It is undisputed that about once a year, from the time when the electric line was installed in 1950, Mr. Elliott had been taking up and replacing the lift rod of this pump by the same method that was being followed on the day of the accident. There was no evidence that he had been warned or informed that the line above the pump house carried high voltage. John Elliott, who had helped his father in this work several times, testified that he knew nothing of electricity and had never been told by anyone, and did not know, that these wires carried a dangerous voltage; that they looked just like the two wires that had been first run into the home; and that the purpose of the tripod through which the lift rod was guided as it was drawn up from the well was to prevent the rod from bending or swaying and becoming entangled with the wires and knocking them down. Both he and McNeely testified that at the time of the accident they were looking up, guiding the rod through the tripod; that the top of the tripod and the wires above it were well illuminated by the 100-watt bulb and reflector on top of the pump house; and that the rod never came in contact with either wire, but was some eight inches from the upper wire when the current arced to it. This testimony, so far as it related to the length of the arc, was in conflict with that of the expert witnesses on both sides. These witnesses, electrical engineers, testified that under the atmospheric conditions existing, according to the testimony, on the night of the accident, the current would have arced not more than one inch, but that, having arced, the arc could have been drawn out several inches as the lift rod moved away.

It is undisputed that there were no signs in the vicinity of the pump house warning of danger from the high-voltage line. For the plaintiff, an electrical engineer experienced in the planning and construction of high-voltage lines testified that in locating such a line across farm property the location of an existing well is an important factor to be considered, because of the common knowledge that the pipes and other parts must be pulled up from time to time for servicing; that the location of the line in question directly over the pump was unsafe; that to have offset it to a safe distance from the pump would have been a simple matter, costing according to his estimate, $50.60 inclusive of labor; and that if the line was to be run directly over the pump house, there should have been at least 32 feet of clearance, which could have been obtained by using two 40-foot poles, at a cost, over that of the poles actually used, of less than $40.00. Defendant's expert witness, also an electrical engineer of many years' experience in the construction of rural distribution lines, conceded that construction of this line so as to avoid passing over the pump house, as contended for by the plaintiff's witness, would have been feasible and safer.

In evidence for the defendant were: (1) the rules and regulations of the South Carolina Public Service Commission relating to electric utilities (Code, 1952, Vol. 7, pp. 810-821); and (2) National Bureau of Standards Handbook H-32, Safety Rules for the Installation and Maintenance of Electric Supply and Communication Lines. Both prescribe a minimum vertical clearance over buildings, for wires carrying 300 to 15,000 volts, of 8 feet. As before stated, the pump house was no more than five feet high and the two wires were, at this point, respectively, 18 feet 9 inches and 21 feet 6 inches above the ground, or 13 feet 9 inches and 16 feet 6 inches above the pump house.

The exceptions going to the trial court's refusal of the motions for nonsuit, direction of verdict, and judgment non obstante veredicto may be discussed together. By them it is contended:

1. That there was no proof of actionable negligence on the part of the defendant;

2. That there was no evidence to support the verdict for punitive damages; and

3. That if there was proof of actionable negligence or recklessness on the part of the defendant, yet the only reasonable inference to be drawn from all the evidence was that Mr. Elliott's death was the result of his own contributory negligence or recklessness, or that of his agents or servants.

That the pump house was a "building" within the contemplation of the clearance regulations before mentioned may well be doubted. Actually, it was a housing for the well pump, with a removable cover. But, assuming that it was a "building" within the meaning of the regulations, compliance with the minimum clearance requirements was not conclusive evidence of due care in that regard. Whether or not the defendant negligently located its high-voltage line was an issue to be determined in the light of all of the facts and conditions disclosed by the testimony. In the determination of that issue the existence of the pump house, as a "building", was of little importance; of great importance was the fact, and whether the defendant knew or should have known it, that this little structure covered a pump, the normal operation of which required periodic removal of the casing or the lift rod.

In Hill v. Carolina Power & Light Co., 204 S.C. 83, 28 S.E.2d 545, 547, the plaintiff, a farmer-carpenter with no knowledge of the vagaries of electricity, was on the roof of a warehouse, sawing off the wooden sheeting near the comb or ridge, when the current of 11,000 volts from the defendant's wire above and to the left of him arced to his left shoulderblade. He testified that his back was not less than six inches from the wire when the current struck him; and that he was sawing with his left hand and holding, with his right, a piece of the tin roofing that overlapped the ridge of the roof from the opposite side in order to lift it away from the board that he was sawing. To quote from the opinion:

"The plaintiff while sawing was wet with perspiration; it was a warm, sultry, drizzly day, and the roof upon which he was working was wet. Five or six fellow workmen upon this wet roof were shocked to a minor degree by the electric current which passed through the plaintiff's body. The sheeting upon the side of the roof where the plaintiff was working had been nailed to the rafters. It may reasonably be inferred that other workmen during the progress of the construction work had occupied the same position occupied by the plaintiff while they with hammer and nails secured the sheeting to the rafters at the end of the gable. None of them had suffered any injury. Neither Hill nor any of his fellow workmen had been warned of any danger to be encountered in coming in close proximity to the high voltage wire. The plaintiff and the other carpenters testified that they saw this wire, but paid little attention to it. They knew it was there, but they did not know it was a high voltage wire; nor did they know that the current might escape from the wire and strike them if they came close to it, without contact. * * *

"* * * There was nothing in the appearance of the wire to warn the plaintiff of the great force being carried over it, or that there was any danger from a disruptive discharge. The danger was hidden and secret. The Power Company, charged with full knowledge of its dangerous proclivities, took no steps to warn the plaintiff of the danger or otherwise to safeguard him from injury."

With regard to the conflicting evidence in that case as to the distance to which current may arc from a wire carrying 11,000 volts, the court said:

"It can hardly be said that the science of electricity is an exact science. It would be more correct to say that it is a growing science, wherein former views may become obsolete. The technical experts testifying for the appellants said that an electric current under the most favorable laboratory conditions would not arc more than one-half an inch from a wire transmitting 11,000 volts. However, Professor S. R. Rhodes, one of these experts, and head of the electrical department of Clemson College, stated that the American Society of Electrical Engineers had not established standard distances that electricity will jump, but they have stated the distance it will jump under specified conditions. A fellow workman with the plaintiff, who was on the roof of the warehouse when the accident in question occurred, stated that he actually saw a ball of fire leave the high-tension wire and jump a distance of two feet to the plaintiff's back. Other testimony places the back of the plaintiff, while in the stooping position of sawing, six inches below the high voltage wire. However, all of this testimony was properly submitted to the jury for their consideration. So frequently do unlooked for results attend the meeting of interacting forces that courts should not indulge in arbitrary deductions from physical law and fact except when they appear to be so clear and irrefutable that no room is left for the entertainment, by reasonable minds, of any other."

In Hoppe v. City of Winona, 113 Minn. 252, 129 N.W. 577, 578, 33 L.R.A., N.S., 449, Ann. Cas. 1912, 247, a workman engaged in painting an iron girder at the top of a bridge was killed by high-voltage current that arced from a nearby wire. The court, affirming a judgment for the plaintiff, said:

"It appears that uninsulated wires so heavily charged throw off at times a `brush' or `disruptive discharge' of electricity sufficient to cause the death of a person in close proximity thereto without actual contact with the wire. This fact is well known to electricians and those familiar with this generally unknown, powerful, and destructive agency. The power company was bound to take knowledge of the fact that it would become necessary from time to time to make repairs upon the bridge, particularly in painting the same, to prevent deterioration and decay from exposure to the elements, and in placing the wires thereon precaution should have been taken for the safety of those thus engaged."

4-County Electric Power Association v. Clardy, 1954, 221 Miss. 403, 73 So.2d 144, 148, 44 A.L.R.2d 1191, involved a factual situation not unlike that in the case at bar. The Association, engaged in the business of operating high-voltage transmission lines and selling electricity to its members, obtained an easement to construct and operate on the Regenold farm an electric distribution or transmission system. It thereafter constructed on this farm its transmission line, carrying 7,200 volts, which terminated at a 30-foot pole some 140 feet southeast of the residence on the farm and 34 feet 9 inches southeast of a well near the house. This well did not have a pump house over it, and the electric pump was exposed on top of the concrete foundation over the well. From the pole before mentioned, upon which there was a transformer, low-voltage insulated wires were run to the residence. Similar wires were strung from the residence to a pole located a few feet from the well, and from that pole to the electric pump on top of the well. Some time after the construction of the transmission line to its terminal pole on the farm, an adjoining landowner desired electricity for his place also, and the Association then extended its line from the terminal pole to the new customer's place. Its high-voltage, uninsulated line, as so extended, was approximately 25 feet above the ground and lacked only 18 inches of being directly over the center of the well. About three and one-half feet below this primary line was a neutral, or ground wire. There was evidence, as there was in the case before us, that the high voltage wire was dark in color and looked to the average individual just like the low voltage insulated wires leading to the house. Plaintiff, a well-repairer, preparing to "pull" the well, was on a metal derrick, about two feet from the high-voltage wire, when in some unascertained way the current entered his body. It may have arced to the wrist ...


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