                                  No. 12570

       I N T E SUPREME C U T O T E STATE O MONTANA
            H           OR    F H         F

                                      1974



D N L P. SPRANKLE,
 O AD

                          P l a i n t i f f and A p p e l l a n t ,



HENRY DeCOCK and CELINA DeCOCK, and
Mid Yellowstone E l e c t r i c Cooperative I n c . ,
a Montana Corporation,

                          Defendants and Respondents.



Appeal from:     D i s t r i c t Court of t h e T h i r t e e n t h J u d i c i a l D i s t r i c t ,
                 Honorable C. B. Sande, Judge p r e s i d i n g .

Counsel of Record:

     For Appellant :

           Douglas Y . Freeman argued, County Attorney, Hardin,
            Montana

     For Respondents:

           Anderson, Symmes, Forbes, Peete and Brown, B i l l i n g s ,
            Montana
           Weymouth D. Symmes argued, B i l l i n g s , Montana
           Crowley, Kilbourne, Haughey, Hanson and G a l l a g h e r ,
            B i l l i n g s , Montana
           Ca l e Crowley argued, B i l l i n g s , 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 Mid-
Yellowstone'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 consist-
ing of various buildings and corrals.
        Sprankle commended employment.on the DeCock ranch in Novem-
ber 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 dis-
pute as to whether DeCock picked the exact site, which was directly
beneath the high voltage line, or prescribed the method of opera-
tion, 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 : 0 0 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 main-
tained 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 nonelec-
tricity 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 plain-
tiff's own negligence contributing as a proximate cause of his
injuries.
        Our law requires all competent capable persons to exer-
cise 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 reason-
able 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 evi-
       dence, 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. Waldorf-
       Hoerner Paper Products Co., 149 Mont. 306, 425
       P.2d 832.


        "Appellant further contends that sufficient evi-
        dence 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 sec-
        tion 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 presump-
        tions 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 favor-
able 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 admitting-
ly knowing any electrical line was dangerous he did not exercise
ordinary care for his safety under the circumstances, which fail-
ure proximately caused his injuries.
       We find no error in the district court ruling and accord-
ingly the judgment and order



                                          Justice




  Chief Justice
