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June 15, 1964

Beulah BROWN, Plaintiff,

The opinion of the court was delivered by: ROBINSON

The defendant of a corporate public utility engaged in the business in the District and distributing electricity in the District of Columbia. On the date of the events from which this litigation arose, the plaintiff resided in the house numbered 4025 Gault Place, Northeast, which is situated on the southern side of that street, and was a customer of the defendant.

The defendant maintained overhead distribution lines supported by a series of 30-foot poles extending along the southern side of Gault Place, Northeast, between the property line and the curb of the street. At the top of each pole was a horizontal crossarm with pins to which wires transmitting electricity could be attached. The poles in the vicinity of the plaintiff's home supported three primary lines each consisting in an uninsulated wife conducting approximately 2,300 volts of current. These passed within 16 to 20 feet of the front of the plaintiff's house at a height of about 28 feet above the ground.

 To reduce this high voltage to the point usable for residential purposes, a primary line was connected to a transformer which converted the voltage from 2,300 to 110 and the reduced current was then conducted through a secondary line, located about four feet below the primary mary line, for distribution in the neighborhood.

 To the secondary line was connected a two-wire 110-volt insulated service line extending from a pole to the plaintiff's house, at a point approximately 17 feet above grade, and from there to a combination meter-fuse box located in a corner inside a relatively small bedroom at a height of about a foot above the floor. This was a metal box, about eight inches wide and ten inches high, which housed six fuses behind a hinged metal door, with a switch on one side and a meter on top having a face approximately six inches in diameter.

 Early one morning a primary line parted in front of the plaintiff's residence, and one segment of the broken line fell across and burned through both wires of the service line leading to her house. There was an electrical explosion causing considerable noise, and a bright light created by burning wires. The momentary contact of the primary and service lines caused an instantaneous surge of excessive voltage to the meter-fuse box in the bedroom, in which the plaintiff was then asleep, which blew part of a fuse from the box into the room.

 The plaintiff testified that she was awakened by a loud noise, bright light and smoke which emanated from the box. Other witnesses for the plaintiff said that there was smoke in the bedroom and damage to the fuse box and meter, and that the blown portion of the fuse had disintegrated. Evidence for the defendant tended to show that while an electrical arc occurred at the fuse, the resulting smoke was not excessive nor the light intense, and that the part of the fuse cast from the box remained intact. It also tended to show that neither the meter nor the fuse box was damaged or marked except for a weld of the fuse threads to its casing in the box and a small dark smudge on the outside of the meter. There is, too, considerable controversy as to the arrangement of furniture within the room and the plaintiff's position with reference to the box. Her testimony that her head was at the foot of the bed a few feet from the box is challenged by the defendant's efforts to show that she occupied a normal position in the bed with her head considerably more distant therefrom. But despite the volume of evidence adduced on these competing theories, other considerations are dispositive of the case.

 There is no evidence tending to show directly that the defendant failed to keep its wires and equipment in proper operating condition or to maintain the meter-fuse box in the plaintiff's house in a safe condition. There is, indeed, no evidence whatsoever that could point to any specific act of negligence on the part of the defendant. The plaintiff rested her case entirely upon the doctrine of res ipsa loquitur and must stand or fall on that basis.

 The defendant is not an insurer of the safety of its distribution system, and is not liable for injuries resulting from its operation unless guilty of some negligent act or omission. *fn2" It is, however, required to exercise a degree of care reasonably commensurate with the danger inherently involved, *fn3" and is accountable to any person to whom it owed that duty for harm resulting from its nonperformance.

 Such a breach of duty undoubtedly may be established through application of the doctrine of res ipsa loquitur. *fn4" Though a doctrine always to be applied with caution, *fn5" it may be assumed that it is properly invoked here. *fn6" Even so, it 'is nothing but a picturesque way of describing a balance of probability on a question of fact on which little evidence either way has been presented.' *fn7" At most, it only authorizes a permissible inference of fact. *fn8" It 'simply means that there arises from the circumstances of the accident an inference of negligence, which is not a presumption but a mere mechanical device that requires the trier of fact -- whether judge or jury -- to consider the evidence to see whether its preponderance shows the defendant's negligence. The inference, even standing alone, may be rejected by the trier of fact.' *fn9"

 It is well established in this jurisdiction that application of the rule of res ipsa loquitur does that shift the burden of proof, and that when all the evidence is in, the question still is whether the preponderance is with the plaintiff. *fn10" As expressed by the Supreme Court, *fn11"

 'Res ipsa loquitur means that the facts of the occurrences warrant the inference of negligence, not that they compel such an inference; that they furnish circumstantial evidence of negligence where direct evidence of it may be lacking, but it is evidence to be weighed, not necessarily to be accepted as sufficient; that they call for explanation or rebuttal, not necessarily that they require it; that they make a case to be decided by the jury, not that they forestall the verdict. * * * When all the evidence is in, the question for the jury is whether the preponderance is with the plaintiff.'

 While the evidence does not suggest that a break in a primary line is a common occurrence, it does show that it could occur from phenomena unassociated with negligence on the defendant's part. A windstorm, a blot of lightning, a blow to a supporting pole, and contraction of the wire itself in cold weather, are among the possible causes. And the evidence pointed to previous occasions upon which a severance was caused by a foreign object lodged across the primary wires.

 An employee of the defendant of unimpeached qualifications expressed the opinion that a foreign object case across the primary wires caused one to burn and He arrived on the scene of the explosion shortly after it occurred and found baling wire, of the type used to bind stacks of undelivered newspapers, in the immediate vicinity of the break. The baling wire had been burned by electricity, and there was another burn on the primary line, confined to a small area at the point where it was severed, denoting contact with a foreign object. He pointed out that the broken primary wire had ends that were molten and rounded at the point of severance, and that the broken ends would instead have been tapered if the wire had parted because of wear or strain. There was also testimony that the block in which the plaintiff lived was frequently used as a place where newspaper carriers received their papers for delivery. The explanation afforded by this ...

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