ARKANSAS-MISSOURI POWER COMPANY v. Carl
| Decision Date | 28 June 1960 |
| Docket Number | No. 16403.,16403. |
| Citation | 280 F.2d 7 |
| Parties | ARKANSAS-MISSOURI POWER COMPANY, Appellant, v. Ray B. CARL, Appellee. |
| Court | U.S. Court of Appeals — Eighth Circuit |
James M. Reeves, Caruthersville, Mo., made oral argument for appellant.
Chas. W. Medley, Flat River, Mo., made oral argument for appellee.
Before SANBORN, MATTHES, and BLACKMUN, Circuit Judges.
This is a diversity case in which plaintiff-appellee recovered a judgment based on a jury verdict, for $12,422.58, as damages for serious injuries he sustained as the result of coming in contact with wires charged with electric energy which were owned and maintained by defendant-appellant.
On this appeal, defendant does not attack the sufficiency of the evidence to support the jury's finding as to its negligence, but presents the sole contention that plaintiff was guilty of contributory negligence as a matter of law which bars his right to recover for the injuries he sustained. At the close of the whole case defendant moved the court for a directed verdict on the ground, inter alia, that the evidence required a finding that plaintiff was guilty of contributory negligence. The trial court reserved its ruling on this motion. Following the verdict, defendant filed motion for judgment n. o. v., which was premised in part on the same ground. Our résumé of the evidence will be limited to that which bears directly upon the conduct of plaintiff said by defendant to conclusively convict him of contributory negligence.
On December 27, 1956, plaintiff, a 68 year old stonemason in the employ of a building contractor, was engaged in the erection of a stone chimney in a cabin which was being constructed for the Y. M.C.A. near Sunnen Lake in Washington County, Missouri. At the time in question, the cabin was nearing completion, the roof was on and the stone chimney had progressed to the point where it was extending through an opening near the center of the roof. From the record, and photographic exhibits, it appears that the cabin, which faced south, had a gable-type roof; the front, or southern slope of the roof, rose to the north and partially extended over the rear or northern slope, for the purpose of accommodating two dormer windows. The chimney rose through this extended portion of the roof, between these two windows. Three horizontal wires, running in a general easterly-westerly direction, crossed over the roof, at a point immediately adjacent to, or partially over the chimney opening. The lower wire, which carried 120 volts of electricity, was approximately 30" above the roof; the next, or middle wire, called a neutral wire, which was about 18" above the first wire, carried no voltage; and the third, or top wire, approximately 18" above the neutral wire, carried 7200 volts. The testimony varies as to the distance from the roof top to the top wire, plaintiff stating that it was "five feet or better," but all witnesses agreed that "anyone could reach" the 7200 volt wire. These wires were covered with weather-proofing material, which had slight insulating value.
Testimony indicated that men working on the roof were obliged to "duck under" the wires upon trips across the roof, and it stands conceded that plaintiff had full knowledge, not only of the existence of the three wires, but also of the fact that it was perilous and dangerous to come in contact with them. His knowledge is pointed up by this portion of his testimony:
Although a total of four or five members of the construction crew were on the roof at the time, none saw plaintiff as he came into contact with the wires. It appears that just prior to the accident, plaintiff, because of his fear of working under the wires, had requested some of his co-employees to move the wires upward so he could work with safety on the chimney. Two of these employees cut a notch in a 2 × 6 board or timber and attempted to raise the wires. Apparently the board was too long, and they turned towards the end of the roof. At that moment, according to witness Abney, plaintiff was standing approximately 5 feet from the wires. Abney then testified that immediately thereafter, while his back was toward plaintiff, he heard "the noise from the electric frying and popping," and turned to see plaintiff "just kind of slumping down on the wires." Although it is not entirely clear from the record just what portions of plaintiff's body came into contact with the wires, it does appear that plaintiff suffered burns in the palm of his left hand and on the back of his right hand, and that Abney observed fire flying from his right hand.
Plaintiff's own testimony failed to indicate in what manner he came into contact with the wires:
The issue of contributory negligence was submitted to the jury by an appropriate instruction premised upon plaintiff's failure to exercise ordinary care in seeing and observing the electric wires, or upon plaintiff's negligence in coming in contact therewith with his hands. A verdict for defendant was authorized upon a finding of such negligence, together with a finding that such negligence directly caused or contributed to plaintiff's injuries.1
In a recent case involving Missouri law, Kroger Co. v. Doane, 280 F. 2d 1, we observed that generally, "the existence of contributory negligence on the part of the injured person is a question of fact, or a mixed question of law and fact, for the determination of the jury." It becomes a question of law for the court when it is determined that reasonable men could not differ or reach different conclusions on the evidence viewed most favorably from plaintiff's standpoint. Kroger Co. v. Doane, supra; Losh v. Ozark Border Electric Cooperative, Mo.Sup., 330 S.W.2d 847, 851, 852, and cases cited. "* * * (P)laintiff's contributory negligence is for the jury unless reasonable minds can draw only the conclusion that plaintiff was negligent." Thompson v. Byers Transp. Co., 362 Mo. 42, 239 S.W.2d 498, at page 500. In Missouri, the burden of proving plaintiff's contributory negligence is upon the defendant unless it be established as a matter of law by plaintiff's evidence. Thompson v. Byers Transp. Co., supra, 239 S.W.2d at page 499; Parsons v. Noel, Mo.Sup., 271 S.W.2d 543, at page 544; and cf. Empire District Electric Co. v. Rupert, 8 Cir., 199 F.2d 941, 945, certiorari denied 345 U.S. 909, 73 S.Ct. 649, 97 L.Ed. 1344. Also relevant here is the rule that "Whether one is guilty of contributory negligence depends upon the particular facts and circumstances surrounding the occurrence that caused the injury." Wilson v. Shumate, Mo.Sup., 296 S.W.2d 72, 76; Williamson v. St. Louis Public Service Co., 363 Mo. 508, 515, 252 S.W.2d 295, 299.
Missouri courts have had occasion to consider numerous cases involving injuries and death from contact with electricity, commonly deemed a highly dangerous instrumentality. In the following reported cases the contention that the injured or deceased party was guilty of contributory negligence as a matter of law was upheld: Hamilton v. Laclede Electric Cooperative, Mo.Sup., 294 S.W. 2d 11; Coleman v. North Kansas City Electric Company, Mo.Sup., 298 S.W.2d 362; Morris v. Kansas City Light & Power Co., Mo.Sup., 302 Mo. 475, 258 S.W. 431 (en banc); Bryan v. Sweeney, 363 Mo. 1024, 256 S.W.2d 769 (applying Illinois law); Rosser v. City of Fayette, Mo.App., 235 S.W. 153, all cited by defendant to support its position, whereas, in the following cases, where the same contention was advanced, it was held that the question was one for the jury to resolve: Kessler v. West Missouri Power Co., 221 Mo.App. 644, 283 S.W. 705; Thompson v. City of Lamar, 322 Mo. 514, 17 S.W.2d 960; Pulsifer v. City of Albany, 226 Mo.App. 529, 47 S.W.2d 233, overruled in part on other grounds, Reichholdt v. Union Electric Company, Mo.Sup., 329 S.W.2d 634, 639; Sanders v. City of Carthage, 330 Mo. 844, 51 S.W. 2d 529; Lebow v. Missouri Public Service Company, Mo.Sup., 270 S.W.2d 713; Gladden v. Missouri Public Service Company, Mo.Sup., 277 S.W.2d 510; Losh v. Ozark Border Electric Cooperative, Mo.Sup., 330 S.W.2d 847.
In particular, defendant relies upon the Missouri Supreme Court cases of Hamilton v. Laclede Electric Cooperative, and Coleman v. North Kansas City Electric Company, supra, and the federal cases of Hale v. Montana-Dakota Utilities Co., 8 Cir., 192 F.2d 274, and Stoffel v. New York, N. H. & H. R. Co., 2 Cir., 205 F.2d 411, certiorari denied, 346 U.S. 898, 74 S.Ct. 222. 98 L.Ed. 399, all holding that recovery was barred because of contributory negligence which appeared as a matter of law.
As a guide through these electricity cases, we find two essential factors which carry decisive weight in determining whether the injured person must be barred as a matter of law — the first is a finding of actual or constructive knowledge of the peril; and second, a finding of some voluntary act of the injured person which placed him in contact with the wire. Keeping these two factors in mind, the cases upon which defendant relies may be distinguished when the particular facts of each are considered. The Hamilton case...
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