State Ex Rel. Hoffman v. Potomac Edison Co.

Offutt, J., delivered the opinion of the Court. Samuel Merle Hoffman, while in the employ of his uncle Joseph M. Hoffman, who was engaged in the business of drilling wells, was, on September 29th, 1932, electrocuted by coming in contact with a, guy wire attached to a pole owned ¹⁴⁰ and used by the Potomac Edison Company as part of a line for the transmission of electric current. His widow and children were awarded compensation under the Workmen’s Compensation Act (Code, art. 101, sec. 1, as amended), and the Century Indemnity Company, the insurer, is discharging that award. Subsequent to the award, on December 17th, 1932, an action was instituted in the Circuit Court for Washington County in the name of the State, for the use of the employer, the insurer, and the dependent widow and children of the deceased, against the Potomac Edison Company, to recover compensation for his death, on the theory that it was caused by the defendant’s negligence.

The defendant pleaded the general issue, the case was tried, and, at the conclusion of the plaintiffs’ evidence, the court directed a verdict forAhe defendant, on the ground that the deceased had by his own negligence so' far contributed to the accident which caused his death as to bar a recovery. This appeal is from the judgment on that verdict. The record submits one exception and two questions. The exception is to the granting of defendants’ B prayer, which instructed the jury that "Merle Hoffman was guilty of negligence directly contributing to his .death,” and that their verdict must be for the defendant.

Since the existence of contributory negligence assumes the existence of primary negligence, the questions are: (1) Was the defendant, upon the facts of the case, guilty of primary negligence, and (2) upon the same facts was Samuel Merle Hoffman as a matter of law guilty of contributory negligence ? The issue is not as to the law, for that is not questioned, nor as to the facts, for they were not disputed, but as to the application of the law to the facts. There was in the case evidence tending to prove these facts, which for brevity and convenience are stated in narrative form. Joseph M. Hoffman, in connection with his drilling work, operated a well-drilling machine and derrick, permanently mounted on a truck.

In moving the truck from place to place the derrick folded forward on a hinge or hinges, and projected ¹⁴¹ from the rear of the truck at a depressed angle over its hood, so that, when folded, the derrick sloped upward from the hood to its highest point, which was at the rear end of the truck. Its highest point, when so- folded, was less than thirteen feet four inches above the surface on which the truck wheels rested. Prior to the accident Joseph Hoffman had finished drilling a well on the property of Spielman’s canning factory, and at the time of the accident he was moving the well-drilling machine from that site to a point near Maugansville, and was coming out of the cannery road onto the “state highway.” The cannery road is referred to in the testimony as a county road, although no witness could say positively that it was a county road. It is nine feet wide and near Big Pool Station in Washington County, runs in a general easterly and westerly direction parallel to the tracks, of the Western Maryland Bailroad.

Near Big Pool Station it forms a junction with a state highway which continues the same direction. At that point the railroad runs through a cut, and the road, called in the evidence a “state highway,” is carried north from the junction over that cut by a bridge. The cannery road approaches the junction at an ascending grade. South of the state road, near and east of the bridge, there was a pole carrying defendant’s transmission lines.

Erom that pole a guy wire attached to it sketched across the junction to a tree to which it. was. also- attached, which stood in a field north cf the west side of the junction. Branches of the tree extended over part of the road and to some extent hid the wire. The ground in which the tree stood was lower than the surface of the road at its crown, so that, while the point at which the guy wire was attached to the tree was eight feet one inch above the surface of the ground in which if stood, it was but six feet eight inches above the level of a horizontal plane in which lay the highest point of the surface of the road. The guy wire was attached to the pole at a point twentymne feet seven inches from the ground, and the-pole .was thirty-nine feet from the tree., ¹⁴² On the morning of the accident, Joseph M. Hoffman was driving the truck on which the drilling machine was mounted, and his nephew, referred to in the evidence as Merle, was following behind him in a small Ford truck.

As the uncle was coming out of the cannery road onto the state highway, he felt the truck “sort of jerk” and he “heard something crack.” At that time he was going upgrade in low gear, just creeping along at about two miles an hour. To quote him: “I came up to the point where the lane came in to the macadam road; I was in low gear and I kept on going, I didn’t stop; the very first thing that attracted my attention tó> indicate that something had occurred was when the pole broke, and the truck seemed as if it kind of winced, and I thought something about the truck had broken and I stopped, I was only creeping along, about two miles an hour. The cab is open on that side and I¡ noticed the pole like that lodged right back of the cab. I looked out through the windshield and I noticed the wire and I thought it was a Western Maryland private phone wire; and I thought to myself, I am in for it now, probably tie up traffic.

I made as if to get out and the truck made as if to move and I pulled back a notch on the emergency brake and jumped out. I didn’t do it in a hurry. I felt this shock when I hit the road. Merle was following close with the little truck.

He,was just below that rise. I got out on the left side. When I jumped out I felt this shock. It seemed as if my legs were numb and I caught myself on my hands in the grass and I got up; he had already gotten up on the truck and took hold of this cable like that.” What had happened was that the guy wire had come in contact with the derrick at a point eleven feet five inches above the surface of the road, slid backward up the derrick, which sloped upward, for about four feet, where it was caught and held by a device known as- a “bullhead” at eleven feet ten inches above the road.

The fall of the pole broke the transmission wires, which carried electric current at a pressure of 6,900 volts, and the broken ends dangled over and in the railroad cut, and there they came in contact with the ground, sparkled, and burned. ¹⁴³ When Joseph Hoffman stopped, Merle, who was in the Ford truck, also stopped, climbed on the truck, seized the guy wire in his hands, and freed it from the “bullhead,” and was still on the truck when his uncle jumped to the ground. When he struck the ground he felt as if his legs “were numb,” and as though he had a shock. He at once called to* his nephew to leave the truck. To quote his testimony: “Merle was already up on the machine and had hold of this cable and he had loosened it.

I mean the guy wire referred to. He had loosened it, and that caused it to sag down between the machine and the tree. Before it was loosened it was tight.' It was about a man’s height after he had loosened it. Merle had hold of the guy wire; it had caught on a bull head; and that caused it to sag down.

I told him to get down, that the truck was evidently charged because I had got a shock.” When Joseph “hit the road,” he said “that must be a. hot line up there,” and Merle answered, “I-say it’s hot, look at it burning down there.” At the time of the accident several school children were present, and William F. Kline, driving a horse and wagon, was approaching over the state road from the direction of Big Pool. Joseph Hoffman, fearing that the bridge might be charged and that the children might cross it and be injured, to prevent injury to them or others, decided to go to Big Pool and notify the power company of the accident, and request them to cut off the current. Before going on that errand he told Merle to watch and see that the children did not come¡ in contact with the bridge, and warned him not to touch anything “pertaining to the truck,” that it was charged. In the meantime the fallen pole, the sagging wire, and the truck blocked the road, so that Kline approaching from the west had stopped.

After Joseph Hoffman had gone, Merle came from behind the truck, walked on the left of it towards Kline, and as he passed the guy wire, which was sagging down at about the level of his chin, he put up his hand as if to push it out of his way, and instantly received the shock which killed him. Kline said that Merle had not spoken to him before the acci ¹⁴⁴ dent. • But Boy Snyder and Leon Turner, two- of the school children, testified that Merle had- asked Kline if he wanted to.get by, and Kline had answered that he could wait. They also- said that before Joseph Hoffman had left to warn the power company he had told Merle “not to touch anything,” that “everything was charged,” and that Merle had himself told thtern “not to- touch anything.” For the purposes of this case these facts and all inferences legitimately deducible therefrom which support the plaintiffs’ right to recover are conceded. The first question to be considered in connection with them is whether -they afford legally sufficient evidence of primary negligence on the part of the defendant.

It may well be doubted whether the evidence-was legally sufficient to support the inference that the cannery road was a- public highway. Joseph Hoffman testified that he could not say whether it was anything- more than a private road to the Spielman cannery. Kline said that it led only as far as the Spielman farms, and' there was no evidence of any such general and continued-usage- as would fix its character as a public highway. But, in view of the- fact that the point at which the derrick fouled the guy wire was within the limits of what was referred to as a state highway, the point is not material. , The photographs indicate that it was within those limits, and the testimony of Joseph Hoffman is to the same effect.

So that the ultimate question is whether negligence may be inferred fro-m the fact that'the defendant maintained a- wire stretched across the highway at a height of eleven feet five inches above the surface thereof. A highway- is a public- road, street or way, dedicated to every lawful and reasonable use to- which it may be put by the public at large for purposes of transportation or travel. Such a use- is usually held to- be lawful and reasonable so long as it does not interfere with or endanger others lawfully and reasonably engaged in the use of the way. The question as to- what is a lawful and- reasonable use is in the nature of things naturally affected by changes in methods ¹⁴⁵ of transportation, and by the needs of those who' must be served by the ways.

So, in rural territory, such ways must be used for the passage of traction engines, threshers and well-drilling machines, for in no other convenient or practical way could persons in such areas secure the mechanical utilities essential to the reasonable and convenient use of their respective properties, and the use of the public highways for the passage of such engines and machines in a reasonably careful and prudent manner is neither unreasonable nor unlawful. 29 C. J., “Highways ” secs. 410, 411. Consistently with that principle, it has been held that corporations or others who have secured permission to obstruct any portion of a highway by the erection of permanent fixtures, such as poles and wires, must so place them as not to interfere with or endanger others who may be in the lawful and reasonable use of such ways for purposes of travel or transportation, which may include moving such vehicles as traction engines and well-drilling machines. In stating that rule', Elliott, in his Roads and Streets, sec. 1072, says: “An electric light company which so places a guy rope as to make it dangerous to the employees of a steam railroad to operate the trains of such railroad is guilty of negligence. The duty of an electric company is to so string its wires as to protect or not injure those rightfully using a highway from injury thereby.

An electric company which suffers a wire to sag down over a highway, and thereby