City of Brady, Texas v. Finklea

• Citation: 400 F.2d 352
• Decision Date: 10 September 1968
• Docket Number: No. 25224.,25224.
• Parties: CITY OF BRADY, TEXAS, Appellant, v. Tommy FINKLEA, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

400 F.2d 352 (1968)

CITY OF BRADY, TEXAS, Appellant, v. Tommy FINKLEA, Appellee.

No. 25224.

United States Court of Appeals Fifth Circuit.

September 10, 1968.

Royal H. Brin, Jr., Dallas, Tex., Craig Porter, San Angelo, Tex., for appellant.

Ben Davis Geeslin, Brady, Tex., Jack C. Eisenberg, L. Tonnett Byrd, Austin, Tex., for appellee.

Before THORNBERRY and SIMPSON, Circuit Judges, and ATKINS, District Judge.

ATKINS, District Judge:

The City of Brady, Texas, appeals from a judgment of $136,207.00 entered for the plaintiff at the conclusion of the trial to the court without a jury. The appellant assails the jurisdiction of the trial court, the findings of fact and conclusions of law entered by the trial judge, and the amount of the verdict as excessive. We affirm.

Tommy Finklea, as administrator and guardian, brought a wrongful death action on behalf of the surviving widow and children of Charles A. Wolf as against the City of Brady, Texas. Without dispute, Wolf, hired by the Brady Independent School District to do electrical work, was electrocuted while replacing light bulbs at the Brady School District football field on the evening of September 3, 1963. The lights at the football field had been constructed in 1935 pursuant to an agreement of the School District and the City whereby the City constructed an electrical distribution system to the Brady High School football field and thereafter provided electrical current through the system. The electrical distribution system consisted of high-voltage "primary" lines which carried 2400 volts from the City's power plant to a transformer pole, pole number 3, located at the northwest corner of the high school grounds. The School District paid the City for the construction of the electrical system.

The diagram in the appendix portrays the appearance of the electrical system prior to Mr. Wolf's death.

Primary lines on the transformer pole, pole number three, were connected to the insulators located on the crossarm attached near the top of the east side of the pole. A jumper wire was then connected to the primary lines and looped under the crossarm to another insulator located on a crossarm attached near the top of the west side of the pole. The transformer converted the electrical current from 2400 volts to 110 and 220 volts which was carried to the football field by three "secondary" lines. These secondary lines, as pictured in the diagram, were enclosed on three sides by the jumper wire attached to the primary line. In effect, the primary line formed a loop which passed over, around and underneath the three secondary lines. A switch used to turn off the electrical current in the secondary lines is located at the base of the pole.

On the evening of September 3, 1963, the deceased and four of his employees met at the football field to replace burned out stadium lights and to repair an electrical scoreboard. Wolf, wearing a safety belt, climbing hooks and highvoltage gloves, prepared to climb pole five, a pole serviced by the secondary lines leading from the transformer pole, in order to replace light bulbs. At his direction, one of Wolf's employees pulled the switch attached to the transformer pole turning off the lights on the west side of the stadium. Wolf died almost instantly from an electric shock he received when his head was approximately four feet below the light bulb he was going to change. His electrocution occurred because an insulator fell from the top crossarm attached to the west side of the transformer pole. The 2400 volt primary line fell across and energized the secondary lines going to pole five where Wolf was working. The crossarm had rotted away at the place where the insulator was attached. At the time of Wolf's death the transformer pole was still rigged as it had been originally constructed by the City in 1935.

The findings of fact and conclusions of law entered by the trial judge establish the liability of the City as follows:

1. When pole No. 3 was originally constructed and rigged, the City strung the 2400 volt primary lines underneath the crossarms rather than over the top of them. This was negligent construction and rigging in 1935, and was a proximate cause of Wolf\'s death.

2. When pole No. 3 was originally constructed and rigged, the City connected the 2400 volt primary lines to the transformer in such a way as to make a loop over and around the secondary lines coming out of the transformer. This was negligent construction and rigging in 1935 and was a proximate cause of Wolf\'s death.

3. The City failed adequately to inspect and maintain pole No. 3 and its equipment. Such failure was negligence and a proximate cause of Wolf\'s death.

4. The failure of the City to install and maintain a warning system which was capable of giving proper notice of an existing ground in the system of sufficient magnitude to cause death was negligence and a proximate cause of Wolf\'s death.

Notwithstanding the appellant's argument to the contrary and the citation to some purported contrary authority, the test on appeal in this case is the "clearly erroneous" test. It is correct that the Court on a prior occasion did state:

Insofar, however, as the so-called `ultimate fact\' is simply the result reached by processes of legal reasoning from, or the interpretation of the legal significance of, the evidentiary facts, it is `subject to review free of the restraining impact of the so-called "clearly erroneous" rule.\' Lehmann v. Acheson, 3 Cir., 206 F.2d 592, 594. As succinctly stated by Professor Moore, `findings of fact that are induced by an erroneous view of the law are not binding. Nor are findings that combine both fact and law, where there is error as to the law.\' 5 Moore\'s Federal Practice, 2d Ed., Sec. 52.03(3), p. 2631. Galena Oaks Corporation v. Scofield, 218 F.2d 217, 219 (5th Cir. 1954).

Elsewhere in the opinion the Court did state:

It is also true, however, that the burden of showing a finding of fact `clearly erroneous\' is not a measure of exact and uniform weight. Under the circumstances of each case, it depends on whether `the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.\' United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 1947. Ibid.

The findings of fact entered by the trial judge were not induced by an erroneous view of the law and we are much concerned with whether upon review of the entire evidence it can definitely and firmly be concluded that a mistake has been committed — a mistake necessitating a reversal. Appellate counsel must not, however, lose sight of the fact that it was the trial judge that had the opportunity to see and hear witnesses, to observe their demeanor on the stand, and thereby the better to judge of their credibility.

Roy Krezdorn, a professor of electrical engineering at the University of Texas and qualified as an expert in energy transmission and conversion, based upon two separate inspections of the City's distribution system on two different occasions, testified the construction in 1935, whereby the primary line was looped around the secondary lines, was a "dangerous" and "unsafe method of rigging the transformer Pole No. 3." He stated that this method of rigging pole 3 did not meet the basic minimum safety requirements of the engineering profession in 1935 and was well below the minimum safety standards of the profession at that time. In particular, the following question was posed to Mr. Krezdorn and the corresponding answer was given by him:

Q. Now, tell the Court, Professor Krezdorn, why, in your opinion, that not only the looping around, but the going under the crossarm was unsafe, dangerous and well below the standards of the engineering profession, both now and in 1935.

A. In embracing the secondaries within the loop of the primary, the red inside the black, you created a hazard; in case you have a failure of crossarm, or of the crossarm pin, the insulator or the conductor of the primary voltage, it can fall into the secondary voltage or the secondary lines. Even if your secondary lines were to fall, they could fall into the primary line, which is under them, so you have created a potentially hazardous situation."

The appellant argues that the testimony of two witnesses establish as a matter of law that the City of Brady was not negligent when it installed the transformer pole in 1935. Edward Geeslin, the City's Superintendent of Utilities at the time of the construction of the lighting system at the football field, made mention of technical specifications that were worked out by out-of-town engineers with General Electric or Westinghouse. It appears that General Electric or Westinghouse, whichever was the case, furnished engineering aid primarily in connection with the size wire needed to light the lamps and the number of lamps that were needed and did not give advice relative to the detail of pole construction. Significantly, Mr. Geeslin testified:

Q. It did not contain the detail of pole construction did it?

A. No, the way I recollect that, we got that from other fields that had been constructed in this area.

Q. Did you drive around and look at them?

A. I am pretty sure we did.

The appellant also relies upon the testimony of plaintiff's expert, Krezdorn. It makes much of the fact that he testified that on his first check of the electrical system of the football field he found nothing wrong. It was only after his second inspection just before trial that he concluded what was wrong with the construction of the system. The explanation for Mr. Krezdorn's testimony lies in the fact that his first inspection occurred over two years after the dangerous situation on the transformer pole had been corrected. According to the testimony of a Lloyd Harris, an employee of the City, he repaired the transformer pole on September 4, 1963, at the request of his supervisor. He explained...