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SUSAN GARCIA v. COAST ELECTRIC POWER ASSOCIATION

AUGUST 20, 1986

SUSAN GARCIA
v.
COAST ELECTRIC POWER ASSOCIATION



BEFORE ROY NOBLE LEE, P.J., ROBERTSON and ANDERSON,

ROY NOBLE LEE, PRESIDING JUSTICE, FOR THE COURT:

Susan Garcia appeals to this Court from a judgment of the Circuit Court of Hancock County entered against her in favor of Coast Electric Power Association on a suit brought for personal injury damages. She has assigned four (4) errors in the trial below.

I.

 THE LOWER COURT ERRED IN OVERRULING APPELLANT'S MOTION FOR A JUDGMENT NOTWITHSTANDING THE VERDICT, OR, IN THE ALTERNATIVE, A NEW TRIAL ON THE GROUND THAT THE VERDICT WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE.

 The evidence favorable to the appellee reflects that the accident here involved occurred at Bay Playtime Marina, which is located in Bay St. Louis, Mississippi. The marina provides launching facilities for boats using the Bay of St. Louis and the Mississippi Sound.

 Extending across the marina property is a high-voltage line, constructed and owned by appellee. The line runs across the area in front of the boat launch and dips to a height of 29'8-1/2 "where the accident occurred. According to appellee's evidence, the area was a parking lot, while appellant claimed that it was a rigging area.

 One Larry Massey owned a 21-foot sailboat with a 27-foot mast and trailer. On June 7, 1981, Massey, Cindy Lewis and appellant took the sailboat to the Bay Playtime Marina for the purpose of launching it. Massey's wife, Sandy, met them at the marina. When they arrived, another boat was occupying the launching facility and Massey drove his truck, which pulled the boat and trailer, into another area to rig the sailboat. *fn1

 Robert Dugger, owner of the marina, testified that the accident occurred in the parking lot area, where the rigging of sailboats was not authorized; that he knew of no prior rigging in the parking lot; and that he would not allow

 a boat to be rigged there, if he had knowledge of it.

 Massey walked from the truck and trailer to the launch slip checking for obstructions. However, he failed to see the power line extending across the parking lot. They then proceeded to raise the mast and, after it was elevated to an upright position, Mrs. Massey saw the power line. Massey directed that the mast be lowered. Appellant was at the front of the boat, attempting to connect the front stay by pulling on it. Instead of being lowered, the mast was brought into contact with the power line. Appellant was electrocuted, rendered unconscious and received second- and third-degree burns on her neck, chest, arms, hands, legs and feet.

 After hearing all the evidence, which included testimony of the witnesses, photographs, charts, and exhibits, the jury returned a verdict in favor of appellee. *fn2

 The principle has been stated numerous times that electricity is a highly dangerous agency and, therefore, the power company which dispenses and sells electricity is under the duty to use the highest degree of care for the protection of the public and individuals. Mississippi Power Co. v. Luter, 336 So.2d 753 (Miss. 1976); Mississippi Power Co. v. Harrison, 247 Miss. 400, 152 So.2d 892 (1963); Delta Electric Power Ass'n v. Burton, 240 Miss. 209, 126 So.2d 258 (1961); Mississippi Power & Light Co. v. Shepard, 285 So. 2d 725 (Miss. 1973); Grice v. Central Electric Power Ass'n, 92 So.2d 837, 230 Miss. 437 (1957).

 However, the duty and responsibility imposed upon a power company, such as appellee, does not fix liability against it on disputed facts. Liability or non-liability must be determined by the jury, which is the sole judge of the weight of the evidence and credibility of witnesses. Jackson v. Griffin, 390 So.2d 287 (Miss. 1980); Georgia-Pacific Corp. v. Blakeney, 353 So.2d 769 (Miss. 1978); Paymaster Oil Mill Co. v. Mitchell, 319 So.2d 652 (Miss. 1976). Further, on the alternative motion for a new trial, the same should be granted only in the exercise of the trial judge's sound discretion when he is convinced the verdict is contrary to the overwhelming or substantial weight of the evidence. Adams v. Green, 474 So. 2d 577 (Miss. 1985); Jesco, Inc. v. Whitehead, 451 So. 2d 706 (Miss. 1984).

 In the case sub judice, the jury resolved the issue of liability against the appellant on disputed facts and, therefore, we must affirm.

 II.

 THE LOWER COURT ERRED IN GRANTING DEFENDANT'S INSTRUCTION D-8 OVER THE ...


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