No. 12570 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

19 74 

DONALD P. SPRANKLE, 

Plaintiff and Appellant, 

HENRY DeCOCK and CELINA DeCOCK, and 

Mid Yellowstone Electric Cooperative Inc., 

a Montana Corporation, 

Defendants and Respondents. 

Appeal from: District Court of the Thirteenth Judicial District, 

Honorable C. B. Sande, Judge presiding. 

Counsel of Record: 

For Appellant : 

Douglas Y. Freeman argued, County Attorney, Hardin, 

Montana 

For Respondents: 

Anderson, Symmes, Forbes, Peete and Brown, Billings, 

Montana 

Weymouth D. Symmes argued, Billings, Montana 

Crowley, Kilbourne, Haughey, Hanson and Gallagher, 

Billings, Montana 

Ca le Crowley argued, Billings, Montana 

- 

Submitted : February 26, 1974 

Filed : MAY 3.5 1974 
Mr. Justice Gene B. Daly delivered the Opinion of the Court. 

Plaintiff and appellant, Donald P. Sprankle, brings this 

appeal from a summary judgment granted by the district court of 

Treasure County, in favor of defendants and respondents, Henry 

and Celina DeCock and Mid-Yellowstone Electric Cooperative, Inc., 

in a personal injury action. 

On the evening of November 26, 1966, Sprankle was severely 

injured by an electrical shock from a Mid-Yellowstone Electric 

Cooperative high voltage power line while working on the DeCock 

Ranch located near Hysham, Montana. 

The power line, carrying 7200 volts, was part of MidYellowstone's distribution system. In 1948, the line was relocated 

from a route running along a county road at the request of DeCock 

who built a house near the road that year. The relocation route 

placed the line running through DeCockls land behind his house. 

In the area where the accident occurred, the line was suspended 

at a height of 25 to 26 feet and ran over a farmyard area consisting of various buildings and corrals. 

Sprankle commended employment.on the DeCock ranch in November of 1958 and lived in a house located on the ranch. On the 

date of the accident Sprankle and another employee, Julio Morales, 

began drilling a water well in one of the corrals. The drilling 

was done at the request of DeCock; however, there is a factual dispute as to whether DeCock picked the exact site, which was directly 

beneath the high voltage line, or prescribed the method of operation, which involved climbing upon a "farmhand loader" to turn a 

hand auger with a 23' handle inside a casing pipe about 16'10" in 

length, which had been driven into the ground a depth of about 9'. 

DeCock testified: 

"Q. Would you describe briefly how the auger would 

be used to drill a well of this nature with the casing 

that you described? A. Well, the way he and I have 
done this before, we'd drill the hole down 12 feet 

with this auger, till we hit gravel, then we lay 

our auger to the side and shove our casing in. 

It's just as simple as that. 

"Q. Would there be anything wrong with placing the 

casing into the hole that you dug with the shovel, 

then place the auger inside the casing and drill with 

the auger from that point down to the gravel? A. 

Yeah, that would be a stupid way to do it, I think. 

"Q. Why? A. Well why work that whole length? Why 

dig in the casing and pull that auger way up above, 

get way up in the air to work on top of this casing? 

Why work that way? I see no reason for it." 

Sprankle testified: 

"Q. He told you where to put it and told you to drill 

the well and use that casing, is that right? A. Right. 

"Q. Did he give you any more details as to how to go 

about it? A. No. 

"Q. And he had told you to do that in the morning 

on this particular day? A. Yes, that was one of the 

jobs to do that day was to put that well, yes, to 

start it, he didn't say I had to have it finished, 

but to start it that day. 

"Q. What time did he leave again on that-- A. 

Around a quarter after 5:00, 20 after 5:OO. I don't 

know exactly what time. 

"Q. Had he gone out and checked your work before he 

left or did he just take off? A. He just took off. 

"Q. Had he been around where you were working at all 

that afternoon? A. That afternoon? I don't believe 

he was around that afternoon, he could have been at 

one of his other ranches, I don't remember, or in 

town after something." 

defendant 

It is undisputed that neither/was present on the ranch at 

the time the accident occurred and that no notification of the 

well drilling was ever given to Mid-Yellowstone. 

Sometime before 6:00 p.m. the hand auger was withdrawn 

by Sprankle to clean out the dirt and came in contact with the 

power line, and he was injured by a severe electrical shock. 

Sprankle testified that he was aware of what he described 

as a "jungle" of overhead wires about the farmyard area, all of 
which were clearly visible. He stated that he did not know the 

line involved in his accident was high voltage and that he thought 

it should have been "insulated", 

Mid-Yellowstone introduced the deposed testimony of 

electrical engineer Maurice Guay as an expert witness. Guay 

testified that the high voltage line had been installed and maintained in compliance with the minimum safety requirements set 

forth in the National Safety Code (N.E.S.C.) as adopted by sections 

24-125, 24-142 and 24-143, R.C.M. 1947. Guay pointed out the N.E. 

S.C. provision that "insulation" may be accomplished by nonelectricity conducting material, or by air space, and that the minimum 

required clearance for the line in question was 20'6". The N.E.S.C 

did not require that warning signs be placed for this installation 

and the record shows that neither defendant had ever placed any 

warning signs in the area of the DeCock ranch. A copy of the N.E. 

S.C. was tendered as a defendants' exhibit. 

Various requests for admission of fact and interrogatories 

were filed by defendant Mid-Yellowstone in 1968 and 1969. One 

subject of both was the applicability of and compliance with the 

N.E.S.C. concerning the line installation. Plaintiff Sprankle 

never answered directly but stated that his investigation of that 

matter had not been completed. Sprankle's answer to supplemental 

interrogatories, filed four days prior to the date set for trial, 

listed no expert electrical witness. 

The sole issue assigned by plaintiff Sprankle is that the 

existence of material factual issues made it erroneous to grant 

the summary judgment. 

Much of plaintiff's argument before us concerns the 

various legal theories and evidentiary basis upon which a jury 

might find that either or both of the defendants were negligent 

in the performance of a duty owed plaintiff. This argument becomes 
moot in the face of the undisputed facts which establish plaintiff's own negligence contributing as a proximate cause of his 

injuries. 

Our law requires all competent capable persons to exercise ordinary care for their own safety, George v. Northern 

Pacific Ry. Co., 59 Mont. 162, 196 P. 869. Ordinary care has been 

defined as that degree of care an ordinarily prudent person would 

exercise under like circumstances to avoid injury. Restatement 

Second, Torts, Negligence S462-3; Prosser on Torts, 4th Ed., 5 65, 

416-17; Stevens v. Waldorf-Hoerner Paper Co., 149 Mont. 306, 425 

P.2d 832. This has been held to include the duty to make reasonable use of one's faculties to observe and avoid conditions of 

obvious potential danger, Pickett v. Kyger, 151 Mont. 87, 439 P.2d 

In the case of Knowlton v. Sandaker, 150 Mont. 438, 436 

P.2d 98, this Court stated: 

"Our conclusion that appellant failed to make a 

case which could go to the jury is buttressed by 

the lonq-established rule in Montana that, '"The 

has made out a prima facie case when 

his evidence discloses injury to himself and that 

the negligence of the defendant was the proximate 

cause of it. [Citing previous cases] It is the 

rule, also, that when the circumstances attending 

the injury, as detailed by the plaintiff's evidence, raise a presumption that he was not, at the 

time in the exercise of due care, he has failed 

to make out a case for the jury. The burden is 

then upon him, and if he fails to introduce other 

evidence to remove the presumption, he is properly 

nonsuited." George v. Northern Pac. Ry. Co., 59 

Mont. 162, 171, 196 P. 869.' Stevens v. WaldorfHoerner Paper Products Co., 149 Mont. 306, 425 

P.2d 832. 

"Appellant further contends that sufficient evidence of deceased's due care to take the case to 

the jury was present under the presumption that 

an individual exercises ordinary care for his 

own safety. This principle is codified in section 93-1301-7, subd. 4, R.C.M. 1947, which reads: 

"'All other presumptions are satisfactory, if 
uncontradicted. They are denominated disputable 

presumptions, and may be controverted by other 

evidence. The following are of that kind: * * * 

"'4. That a person takes ordinary care of his 

own concerns.' 

"In 20 Am.Jur., Evidence, S 158, p. 163, the 

matter is correctly interpreted as follows: 

'Where facts appear, presumptions recede. 

Thus, the necessity for resorting to presumptions disappears where there is direct and 

positive evidence upon the matter in issue.' 

"The evidence as presented by the appellant was 

sufficient to rebut the presumption of due care, 

and further evidence should have been produced 

in order to get to the jury." 

Viewing the plaintiff's evidence in the light most favorable to him it is susceptible of but one conclusion--he climbed 

onto a farmhand loader and hoisted a long metal pole into contact 

with high overhead power lines which were clearly visible, which 

he had lived and worked around for eight years. While admittingly knowing any electrical line was dangerous he did not exercise 

ordinary care for his safety under the circumstances, which failure proximately caused his injuries. 

We find no error in the district court ruling and accordingly the judgment and order 

Justice 

Chief Justice