TURLEY v MONTANA POWER CO

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No. 12755 I N THE SUPREME COURT O T E STATE O M N A A F H F OTN 197 5 S M TURLEY, A P l a i n t i f f and Respondent, -vs - THE M N A A PWER COMPANY, OTN Defendant and Appellant. Appeal from: D i s t r i c t Court of t h e Eighteenth J u d i c i a l D i s t r i c t , Honorable W. W. L e s s l e y , Judge p r e s i d i n g . Counsel of Record: For Appellant : M r o , Nash and Sedivy, Bozeman, Montana or w Edmund P. Sedivg argued, Bozeman, Montana For Respondent : Berg, Angel, Andriolo and Morgan, Bozeman, Montana Richard J. Andriolo argued, Bozeman, Montana Submitted: Filed : q?,y Decided : -9 ~ 2 T I Clerk A p r i l 8, 1975 MAY - 3 '1975 M r . J u s t i c e John Conway Harrison d e l i v e r e d t h e Opinion o f t h e Court. Defendant Montana Power Company b r i n g s t h i s a p p e a l from a judgment e n t e r e d i n a p e r s o n a l i n j u r y a c t i o n i n t h e d i s t r i c t c o u r t , G a l l a t i n County, i n f a v o r of p l a i n t i f f Sam Three a d d i t i o n a l defendants, William H. H e i s e r , Turley. S i g r i d M. B u r r e l l and Wallace McHenry were o r i g i n a l l y named, b u t were dismissed m i d t r i a l on t h e i r motion without o b j e c t i o n of p l a i n t i f f . The j u r y awarded p l a i n t i f f damages i n t h e amount of $30,000. judgment Defendant a p p e a l s from t h i s v e r d i c t and . Turley was an employee of t h e Big Sky Model Homes of L i v i n g s t o n , Montana, when he r e c e i v e d s e r i o u s i n j u r i e s while working on t h e roof of a Big Sky Home Heiser. belonging t o one Sam He came i n t o c o n t a c t w i t h high v o l t a g e w i r e s which passed over t h e roof of t h e Heiser home. in The home/question w a s purchased by Heiser i n October 1970, from a b u s i n e s s known a s Premier Homes, a d e a l e r f o r t h e Big Sky brand mobile homes. On October 26, 1970, Premier Homes moved t h e mobile home o n t o p r o p e r t y owned by Wallace McHenry, a t a l o c a t i o n known a s t h e f o u r c o r n e r s a r e a i n G a l l a t i n County. The McHenry p r o p e r t y c o n s i s t e d of about t h r e e a c r e s and was p r i n c i p a l l y used by McHenry t o o p e r a t e a grocery s t o r e and a f i l l i n g station. There were a number of t r a i l e r p a r k i n g a r e a s on t h e a c r e a g e which had been used many y e a r s b e f o r e and McHenry i n 1969 allowedHeiser, h i s b r o t h e r - i n - l a w , home on t h e p r o p e r t y . t o s e t up h i s mobile When he s o l d h i s o r i g i n a l t r a i l e r on t h e s i t e , Heiser was p e r m i t t e d t o move a new one on t h e acreage. o r i g i n a l t r a i l e r was 55 f e e t long, t h e Big Sky t r a i l e r was 66 f e e t long. The I n approximately 1954, defendant Montana Power Company c o n s t r u c t e d an e l e c t r i c a l t r a n s m i s s i o n l i n e running n o r t h and s o u t h a c r o s s t h e p r o p e r t y now owned by McHenry. The p o l e s f o r t h e l i n e s were l o c a t e d along t h e p r o p e r t y fence l i n e s . One p o l e was a t t h e n o r t h end of t h e fence l i n e , a l o n g wfth s e v e r a l o t h e r p o l e s c o n s t i t u t i n g a switching s t a t i o n . The pole a t t h e s o u t h end of t h e p r o p e r t y was some 290 f e e t from t h e n o r t h end pole. A t t h e t i m e of t h i s c o n s t r u c t i o n t h e Power Company r e c e i v e d two right-of-way easment deeds, one 50 f e e t i n width, f o r t h e operat i o n of i t s l i n e s . While t h e r e i s disagreement on whether t h e o r i g i n a l H e i s e r t r a i l e r was under t h e power l i n e s , t h e r e i s no q u e s t i o n b u t t h a t 1 t h e Big Sky t r a i l e r was some 1 f e e t under t h e l i n e s . The power l i n e s were o r i g i n a l l y c o n s t r u c t e d a t a h e i g h t whereby t h e lower f o u r l i n e s t r a n s m i t t i n g 7200/12470 v o l t s , known a s t h e 12 KV system, were seventeen f e e t , s i x i n c h e s from ground l e v e l . The upper t h r e e w i r e s , t r a n s m i t t i n g 50,000 v o l t s , were h i g h e r . This h e i g h t was w e l l w i t h i n t h e National E l e c t r i c S a f e t y Code. A f t e r t h e H e i s e r Big Sky t r a i l e r was moved under t h e l i n e s t h e lower f o u r l i n e s , t h e 12 KV l i n e s , extended only f i v e f e e t , s e v e n i n c h e s over t h e roof of t h e t r a i l e r . were e i g h t f e c t h i g h e r . The upper l i n e s The National E l e c t r i c S a f e t y Code pre- s c r i b e s t h a t t h e c l e a r a n c e h e i g h t over b u i l d i n g s be c o n s t r u c t e d a t a minimum h e i g h t of e i g h t f e e t , and w i t h t h e l e n g t h of t h e span h e r e , t h e h e i g h t should have been n i n e f e e t , f o u r i n c h e s . A t t h e time of moving t h e t r a i l e r onto t h e p r o p e r t y , no one n o t i f i e d Montana Power Company t h a t t h e t r a i l e r was b e i n g moved under i t s l i n e s ; n o r d i d anyone a s k t o put t h e t r a i l e r on i t s easement. Premier Homes personnel d i d a l l of t h e n e c e s s a r y sewer and e l e c t r i c a l hook-ups, when i t moved t h e t r a i l e r onto t h e site. Immediately a f t e r s e t t i n g up t h e Big Sky t r a i l e r , Heiser began having problems w i t h i t and he r e q u e s t e d Premier Homes t o come o u t and f i x t h e d e f i c i e n c i e s he had found--such a s c a r p e t i n g , p a n e l l i n g , plumbing, t h e w a t e r system, t h e f l o o r and these windows. Premier Homes passed/complaints on t o Big Sky Company a t Livingston and Turley was s e n t o u t by t h e company t o f i x them. He f i r s t a r r i v e d t h e r e on November 5 and worked t h a t day through t h e 7 t h , making n e c e s s a r y r e p a i r s . A f t e r a weekend, he r e t u r n e d on t h e 9 t h , a r r i v i n g about 1 p.m., t o f i x the roof. O t h a t day he was accompanied by a n o t h e r Big Sky Company emn ployee, a M r . Sparr. Turley t e s t i f i e d he and H e i s e r went up on t h e r o o f of t h e t r a i l e r where Heiser pointed o u t t h e problems he saw on the roof. Turley decided t h a t i t would b e n e c e s s a r y t o s e a l t h e roof t o prevent l e a k a g e , Heiser agreed t h i s would be s a t i s factory. A t t h e time t h e men were on t h e roof Turley observed t h e w i r e s running over t h e t r a i l e r and was aware t h e y were high voltage wires. Following t h e roof i n s p e c t i o n t h e two men went down o f f t h e r o o f and Turley worked w i t h h i s co-employee f o r an hour o r s o f i x i n g windows. During t h i s t i m e , he t e s t i f i e d , he a g a i n observed t h e power p o l e s and t h e w i r e s above him. took h i s roof r e p a i r equipment and went began applying s e a l e r t o t h e r o o f . Turley then back on t h e roof and A t t h a t time he a g a i n observed t h e w i r e s , b u t d i d n o t t h i n k they would b o t h e r him, even though he i s s i x f e e t , t h r e e i n c h e s t a l l and t h e w i r e s were only f i v e f e e t , seven i n c h e s over t h e r o o f . Sometime d u r i n g t h i s p e r i o d h i s forehead came i n t o c o n t a c t w i t h t h e most e a s t e r l y t r a n s mission l i n e r e s u l t i n g i n s e v e r e i n j u r i e s . Appellant Power Company r a i s e s s i x i s s u e s on a p p e a l , however due t o o u r f i n d i n g t h a t i s s u e one, t h e f a i l u r e of t h e t r i a l c o u r t t o g r a n t d e f e n d a n t ' s motions f o r d i s m i s s a l and a d i r e c t e d v e r d i c t , i s c o n t r o l l i n g , o n l y t h a t i s s u e w i l l be d i s cussted herein. Appellant Power Company and respondent Turley r e c o g n i z e t h a t i s s u e one i s t h e c o n t r o l l i n g i s s u e and devote much of t h e i r argument t o t h i s p o i n t . Appellant r e l i e s on a r e c e n t opinion of t h e Court, Sprankle v. DeCock, Mont._ , 530 P.2d 457, 459, 460, 3 1 St.Rep. 437, and a u t h o r i t i e s c i t e d t h e r e i n a s c o n t r o l l i n g . Respondent Turley argues t h a t t h i s i s a c a s e where t h e Court must c o n s i d e r t h e evidence i n a l i g h t most f a v o r a b l e t o t h e p a r t y a g a i n s t whom t h e motion i s d i r e c t e d and t h a t every r e a s o n a b l e i n f e r e n c e t o such evidence w i l l be given i n t h a t Also, t h a t a cause should never be withdrawn from p a r t y ' s favor. a j u r y u n l e s s t h e conclusion from t h e f a c t s n e c e s s a r i l y follows a s a m a t t e r of law t h a t recovery cannot be had on any view which can be reasonably drawn from t h e f a c t s which t h e evidence tends t o establish. P a r i n i v. Lanch, 148 Mont. 188, 418 P.2d 861; McIntosh v. Linder-Kind Lumber Co., 144 Mont. 1, 393 P.2d 782. Respondent c i t e s t h r e e Montana c a s e s , Mize v. Rocky Mounv. t a i n B e l l Telephone Co., 38 Mont. 521, 100 P. 971; ~ o u r k e B u t t e E l e c t r i c & Power Co., 33 Mont. 267, 83 P. 470; and Farnum v. Montana-Dakota Power Co., 99 Mont. 217, 43 P.2d 640, i n support because o f h i s p o s i t i o n t h a t l a p p e l l a n t was i n v i o l a t i o n of t h e s t a n d a r d s s e t by t h e National E l e c t r i c a l S a f e t y Code a s t o t h e h e i g h t from t h e roof of t h e t r a i l e r t o t h e w i r e s , i t cannot escape l i a b i l i t y by p l e a d i n g i t d i d n o t know of t h e v i o l a t i o n s . Respondent a r g u e s t h e r e was a l e g a l duty on t h e p a r t of a p p e l l a n t t o i n s p e c t i t s l i n e s and t o know when they c r o s s e d p l a c e s of h a b i t a t i o n . Anderson v. Northern S t a t e s Power Co., 236 Minn. 196, 52 N.W.2d 434, 439. W have c a r e f u l l y examined t h e a u t h o r i t i e s r e l i e d upon e by respondent and f i n d them e i t h e r f a c t u a l l y n o t a p p l i c a b l e h e r e o r n o t c o n t r o l l i n g law i n view of ~ o n t a n a ' smost r e c e n t c a s e on p o i n t , Sprankle. From all the evidence there can be but one conclusion, that respondent failed to use reasonable care under the circumstances. He acknowledged he had observed the wires while on the ground, that he was aware they were high voltage lines, and yet he either walked into one or straightened up from his sealing job and contacted one of the lines. According to all testimony, there was nothing obstructing his view. One of respondent's witnesses testified as to what a reasonable standard of care would be under the circumstances and respondent failed in all regards to this standard propounded by Mr. Pierce, his own witness. Pierce testified a repairman, doing a like job, should have thoroughly checked the wires to determine their type and if there was any question then he should have checked the wires and poles from different angles and should not have proceeded with his work until this was done. He further testified a repairman should keep his eyes on the wires while working and not risk any chance on their height, and in every way he should keep a lookout for his own safety. Considering respondent's argument with respect to the minimum clearance standards of the National Safety Code, appellant argues that originally the power lines exceeded the minimum standards of the code in that they were seventeen feet, six inches from the ground to the lowest wire; that it had obtained right of-way easements for its lines and poles and no one had ever requested permission to move a mobile home onto the easement, nor did they notify appellant of the proposed move. Moving the mobile home onto the easement created a code clearance violation which some fourteen days later led to the injury of respondent. Noting respondent's reliance on Anderson on the duty to inspect, appellant cites this from the same case: "* * * but such inspection is intended primarily for the purpose of discovering and correcting defects in its lines or its apparatus. Here, the accident was not the result of defective lines or apparatus, but, instead, resulted from the creation of a dangerous c o n d i t i o n by t h e a c t of a t h i r d p a r t y i n changing t h a t which had been s a f e t o something which became dangerous by t h e e r e c t i o n of a s t r u c t u r e which brought people i n t o c l o s e proximity w i t h t h e dangerous l i n e s where people had n o t been expected t o be b e f o r e . The evidence i n t h i s c a s e does n o t warrant a f i n d i n g of n e g l i g e n c e based on a f a i l u r e t o i n s p e c t . 11 I n t h e i n s t a n t c a s e , a s i n Anderson , which was a n e a r l y i d e n t i c a l f a c t s i t u a t i o n , i t h a r d l y seems r e a s o n a b l e f o r anyone t o f i n d t h a t a duty e x i s t e d , l e t a l o n e a breach of duty. But t h e s e q u e s t i o n s a r e r e a l l y moot i n view of t h e law of Montana a s r e c e n t l y expressed by t h i s Court i n Sprankle. I n Sprankle t h e t r i a l c o u r t r e f u s e d t o submit t h e c a s e t o a j u r y and g r a n t e d summary judgment. T h i s Court on review s t a t e d : II Much of p l a i n t i f f ' s argument b e f o r e us concerns t h e v a r i o u s l e g a l t h e o r i e s and e v i d e n t i a r y b a s i s upon which a j u r y might f i n d t h a t e i t h e r o r both of t h e defendants were n e g l i g e n t i n t h e performance of a duty owed p l a i n t i f f . This argument becomes moot i n t h e f a c e of t h e undisputed f a c t s which e s t a b l i s h p l a i n t i f f ' s own negligence c o n t r i b u t i n g a s a proximate c a u s e of h i s i n j u r i e s . II Our law r e q u i r e s a l l competent c a p a b l e persons t o e x e r c i s e o r d i n a r y c a r e f o r t h e i r own s a f e t y , George v. Northern P a c i f i c Ry. Co., 59 Mont. 162, 196 P. 869. Ordinary c a r e has been d e f i n e d a s t h a t degree of c a r e an o r d i n a r i l y prudent person would e x e r c i s e under l i k e circumstances t o avoid i n j u r y . R e s t a t e ment Second, T o r t s , Negligence 5462-3; P r o s s e r on T o r t s , 4 t h Ed., §65, 416-17; Stevens v. WaldorfHoerner Paper Co.? 149 Mont. 306, 425 P.2d 832. This h a s been h e l d t o I n c l u d e t h e duty t o make r e a s o n a b l e u s e of o n e ' s f a c u l t i e s t o observe and avoid c o n d i t i o n s of obvious p o t e n t i a l danger, P i c k e t t v. Kyger, 151 Mont. 87, 439 P.2d 57. I' The Court then concluded: "Viewing t h e p l a i n t i f f ' s evidence i n t h e l i g h t most f a v o r a b l e t o him i t i s s u s c e p t i b l e of b u t one conclusion--he climbed onto a farmhand l o a d e r and h o i s t e d a long metal p o l e i n t o c o n t a c t w i t h high overhead power l i n e s which were c l e a r l y v i s i b l e , which he had l i v e d and worked around f o r e i g h t y e a r s . While adm i t t i n g l y knowing any e l e c t r i c a l l i n e was dangerous he d i d n o t e x e r c i s e o r d i n a r y c a r e f o r h i s s a f e t y under t h e circumstances, which f a i l u r e proximately caused h i s i n j u r i e s . 11 I n Sprankle, a s h e r e , t h e c o n t r o l l i n g q u e s t i o n t u r n s on t h e m a t t e r of proximate cause and evidence a s t o whether t h e i n j u r e d p a r t y e x e r c i s e d o r d i n a r y c a r e f o r h i s own s a f e t y t o avoid coming in contact with the power line. In Sprankle the Court found that plaintiff's own negligence was a proximate cause of his injuries. The same can be said in the instant case. Here, respondent although aware of the high voltage lines, somehow came into contact with one of them and in so doing he failed in his duty to reasonably use his faculties to observe and avoid obvious danger. This negligence was the proximate cause of his injuries, Respondent argues Sprankle can be distinguished because here there is a safety code violation. Even granting his argument, this is not a valid distinction for in Sprankle the Court was willing to concede defendant's negligence, but held that this point was moot because of plaintiff's own negligence being or contributing as a proximate cause of his injuries. Accepting respondent's argument, the same is true in the instant case. The judgment of the trial court is reversed and the cause dismissed. Hon. E Gardner Brownlee, District . Judge, sitting for Chief Justice James T. Harrison.

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