Arkansas Power & Light Co. v. Johnson

• Decision Date: 12 July 1976
• Docket Number: No. 75--322,75--322
• Citation: 260 Ark. 237,538 S.W.2d 541
• Parties: ARKANSAS POWER AND LIGHT CO., Appellant, v. Jetta Catherine JOHNSON, Administratrix of the Estate of Richard Lee Johnson, Deceased, Appellee.
• Court: Arkansas Supreme Court

Page 541

538 S.W.2d 541

260 Ark. 237

ARKANSAS POWER AND LIGHT CO., Appellant, v. Jetta Catherine JOHNSON, Administratrix of the Estate of

Richard Lee Johnson, Deceased, Appellee.

No. 75--322.

Supreme Court of Arkansas.

July 12, 1976.

[260 Ark. 239] House, Holmes & Jewell, Little Rock, for appellant.

McMath, Leatherman & Woods, P.A. by Phillip H. McMath, Little Rock, for appellee.

OPINION

WALTER R. NIBLOCK, Special Justice.

Jetta Catherine Johnson, Appellee, brought this action as Administratrix of the estate of Richard Lee Johnson, deceased, on her behalf as widow and on behalf of her two minor children, against Arkansas Power and Light Company, Appellant.

Richard Lee Johnson was employed as a painter by Don McCormick Paint Company for approximately two weeks prior to his death. During that time, he had worked at the Community Church, 20th and Louisiana in Little Rock, Arkansas. When the accident occurred, Johnson had begun to apply the second coat of paint, repeating the work he had done in applying the first coat.

The church, on the west side, has three levels, namely a one-story annex that has a flat roof, and two additional slanted roof levels above the flat roof. On either side of the building are two telephone poles, the north pole standing erect, and the south pole leaning to the east. Various wires were strung from these poles including an Arkansas Power and Light Company neutral wire, hanging approximately 14 feet above the flat roof level. Also, strung from these poles about 20 feet above the flat roof, was an Arkansas Power and Light Company primary conductor, which carried 7620 volts.

On the day of his death, Mr. Johnson began work at 8:00 a.m. He was working on the flat roof, using an aluminum ladder extended to about 22 feet and an electric spray painting machine. Working with him was Robert Cochran, also a painter. The two painted along the west side of the building, going from north to south. While Mr. Cochran went down to the ground to get more paint, Mr. Johnson picked up the ladder, holding it vertically and proceeded to move the ladder south to go around the corner. When Cochran last saw Johnson, he was moving the ladder around the corner.

Mr. Cochran testified that while he was on the ground, he heard Mr. Johnson make a groaning noise. He found Mr. Johnson lying on the roof on his back. The aluminum ladder was dangling toward the ground. Mr. Johnson was breathing irregularly, but died shortly thereafter.

A autopsy revealed a small lesion on the deceased's right little toe which was found to be an electrical exit wound and that death was by electrocution. However, the deceased also was afflicted with cirrhosis of the liver, and at the time of death he had a blood alcohol level of .06%.

Mr. Earl Looper testified over the objection of the appellant, that approximately six weeks after the death of Mr. Johnson, he received an electrical injury, which required hospitalization, at the same spot as did the deceased. Mr. Looper was repairing the church roof and was also using an aluminum ladder. The parties stipulated that the physical conditions existing at the time of both accidents were not only substantially similar but identical.

Mr. Robert Frank, an electrical engineer, testified for the appellee that, in his opinion, the conditions concerning the existence of the powerlines in question were unsafe and in violation of the National Electric Safety Code. However, Mr. Charles Dietz, witness for the appellant, testified that the measurements were in compliance with the National Electric Safety Code.

The case was tried before the jury on two separate occasions, on each occasion the jury returned similar verdicts in favor of the plaintiff. In the first trial, the jury erroneously awarded the estate of the deceased $96,200.82, even though the estate was entitled to recover only funeral expenses and some $10,000.00 for conscious pain and suffering. Therefore, the plaintiff joined in the defendant's motion for a new trial which was granted. The second trial again resulted in a verdict in favor of the plaintiff for $151,616.42. It is from this judgment that appellant appeals.

Appellant raises two points for reversal. It is first argued that the trial court erred in admitting the testimony of Earl Looper concerning his subsequent electrocution on the same premises on which deceased suffered his fatal shock. We find this point to be without merit.

The general rule with regard to the admissibility of evidence of similar occurrences is that such evidence is admissible only upon a showing that the events arose out of the same or substantially similar circumstances and the burden rests on the party offering such evidence to prove that the necessary similarity of conditions exists. Fulwider v. Woods, 249 Ark. 776, 461 S.W.2d 581 (1971); 32 C.J.S. Evidence § 584. There is no question that the appellee adequately sustained this burden at the trial since the defendant stipulated 'that the conditions of the building and of the facilities both of Arkansas Power and Light Company and any other physical maters connected with the location are the same today as they were in April, 1972, and in June, 1972.'

The issue, therefore, becomes one basically of relevance. It is appellant's contention that evidence of a prior similar accident is admissible only for the purpose of showing notice of a dangerous condition to the alleged tortfeasor. Not only is this point irrelevant because we are concerned here with a subsequent accident, but it is a misinterpretation of our prior decisions. St. Louis Southwestern Railway Company v. Jackson, Adm'r, 242 Ark. 858, 416 S.W.2d 273 (1967), is cited for this proposition; however, in that opinion we stated:

'The annotation in 70 A.L.R.2d 170 points out that 38 states and several of the federal courts have held evidence of a prior similar accident admissible to establish a dangerous or defective condition at the place in question, where the dangerous condition of the place in question is at issue. In addition, 36 such states and several of the federal courts have held such evidence admissible to show defendant's notice of the existence of the defect.' 416 S.W.2d at 276.

Nowhere in that opinion was it stated that evidence of a prior similar accident is admissible only to show knowledge of the dangerous condition on the part of the defendant.

In allowing the introduction of the evidence in question, the trial court stated:

'The statement I made about proffered evidence applies, of course, to this motion as it does to others, but I have given considerable time and concern and attention to this matter since it was a question in the first trial. I have come to the conclusion that under appropriate conditions and proper foundation evidence of the subsequent accident may be introduced in this case to prove, not necessarily the existence of a particular physical condition or situation because that you say you have stipulated or will stipulate, but to show that the plaintiff's injury was caused by the alleged defective dangerous condition or situation, to show that the situation as of the time of the accident sued for was dangerous and to refute any argument, which I assume will be made, or evidence to the effect that it was impossible for this to happen. I'm talking about the first instance where Johnson was injured, to refute any evidence or claim that it is impossible to that accident to have happened.' * * *

As authority for its position, the trial court relied on McCormick, Evidence, § 200 (2nd Ed. 1972), Rowe Auto and Trailer Sales, Inc. v. King, 257 Ark. 484, 517 S.W.2d 946 and Fulwider v. Woods, 249 Ark. 776, 461 S.W.2d 581 (1971). McCormick recognized that proof of other similar accidents and injuries in negligence cases may be offered for the purpose of proving the existence of a particular physical condition, situation or defect; showing that the alleged defective or dangerous situation caused the plaintiff's injury. He points out that the need is plainer where the issue of cause is in genuine dispute because the inference of causation is an elusive one as to which circumstantial evidence is appropriate. We agree with appellee that these purposes were adequate to call for the exercise of the trial court's discretion as to admissibility of the Looper testimony.

In Fulwider v. Woods, supra, we stated:

'The question involved is basically one of relevance. Its resolution involves the same or similar factors involved in determining admissibility of proof of prior or subsequent conditions or conduct to prove an existence of a condition or conduct at the time in issue. This determination is usually held to be within the discretion of the trial court. See Giroux v. Gagne, 108 N.H. 394, 236 A.2d 695 (1967); Cogswell v. C. C. Anderson Stores Co., 68 Idaho 205, 192 P.2d 383 (1948); Jenson v. Southern Pacific Company, 129 Cal.App.2d 67, 276 P.2d 703 (1954); Manning v. New York Telephone Company, 388 F.2d 910 (2nd Cir., 1968); Little Rock Gas and Fuel Co. v. Coppedge, 116 Ark. 334, 172 S.W. 885. Of course, there is no reversible error in such cases in the absence of an abuse of discretion.' 461 S.W.2d at 586.

Although the Fulwider case dealt with the admissibility of evidence showing subsequent conduct in an action concerning fraudulent misrepresentations, that case is not so distinguishable that its principle is inapplicable to the case at bar. The cases cited in Fulwider to support the principle that the relevance and admissibility of evidence concerning prior or subsequent accidents are within the discretion of the trial court, include many personal injury actions. In Manning v. New York Telephone Company, the court stated:

'Appellant complains of the admission of testimony relating to the condition of the pole step hole on dates as much as three years after the accident as evidence of the condition of the pole step hole at the time of the accident. Whether...