Barrois v. Service Drayage Co., 4299

• Decision Date: 07 June 1971
• Docket Number: No. 4299,4299
• Citation: 250 So.2d 135
• Parties: Joseph P. BARROIS v. SERVICE DRAYAGE COMPANY, Inc. d/b/a Ryan Crane Service et al.
• Court: Court of Appeal of Louisiana — District of US

Page 135

250 So.2d 135

Joseph P. BARROIS v. SERVICE DRAYAGE COMPANY, Inc. d/b/a Ryan Crane Service et al.

No. 4299.

Court of Appeal of Louisiana, Fourth Circuit.

June 7, 1971.

Rehearings Denied July 15, 1971.

Dillon & Williams, Gerald M. Dillon, New Orleans, for defendants-appellants.

Porteous, Toledano, Hainkel & Johnson, William A. Porteous, III, New Orleans, for appellees-appellants.

Robert J. Young, Jr., New Orleans, for intervenor.

Little, Schwartz, & Dussom, John Pat Little, Charles Schwartz, Jr., Michael F. Little, and James M. Colomb, Jr., New Orleans, for plaintiff-appellee.

Before CHASEZ, REDMANN and BOUTALL, JJ.

BOUTALL, Judge.

This is a suit for bodily injuries as a result of an accident in which plaintiff received severe electrical shock and burns while engaged in removal of a large tank from his place of employment. A jury trial resulted in a verdict for plaintiff against all defendants. From the judgment based thereon, the defendants appeal.

The plaintiff alleges that on May 25, 1966, while in the employ of General Dynamics Corp., Liquid Carbonic Division, he was called upon to point out to an employee of Service Drayage Company, Inc., d/b/a Ryan Crane Service, a large CO2 tank which was to be removed from the General Dynamics Corp. yard. This tank was to be lifted by a Service Drayage Company crane and placed aboard a truck owned by Jos . Ribaul Transfer. He alleges that since the operator of the crane, Lawrence Bersuder, came alone, he and Benjamin Struggs, the truck driver of Ribaul's truck, assisted the crane operator by attaching the hooks of the load cable leading from the boom of the crane to the tank which was to be lifted. While they were engaged in fastening the chains to the tank, the crane came into contact with an overhead high voltage electric line causing plaintiff to be severely burned.

In his original petition, plaintiff alleges the negligence of Bersuder, the crane operator, and sues, as parties defendant, the crane company and its insurer, Service Drayage Co., Inc., d/b/a Ryan Crane Service, and Phoenix Insurance Company. In his supplemental petition, he alleges that the owner of the truck, Jos. Ribaul Transfer Co., Inc., was insured by Fireman's Fund Insurance Company (for whom The American Insurance Company was later substituted) under a policy containing a 'loading and unloading' clause, and that Bersuder, the crane operator, came under the provisions thereof as an 'omnibus insured' during the process of loading the tank onto the truck. He then made the insurance company, now The American Insurance Company, a party defendant in solido.

There was an intervention filed by Insurance Company of North America, the workmen's compensation insurance carrier of General Dynamics, against the same defendants for the amount paid under its policy on behalf of the plaintiff. The defendants, Service Drayage Co. and Phoenix Insurance Company, answered, alleging some special defenses, and filed a third party petition against The American Insurance Company and General Dynamics Corp. The defendant, The American Insurance Company, answered all pleadings and alleged special defenses. General Dynamics Corp. filed a motion for summary judgment to the third party petition of Service Drayage and Phoenix, and was dismissed from the suit.

Trial was had before a jury which rendered a special verdict, finding that (1) Bersuder was negligent and his negligence was a proximate cause of the accident; (2) Barrois was not negligent; (3) Bersuder was not a borrowed servant of General Dynamics Corp.; (4) Barrois was not a borrowed servant of Service Drayage Company; (5) at the time of the occurrence of the accident, the truck insured by American Insurance Company was being loaded; (6) Barrois' damages amounted to $175,000.00. The judge thereupon rendered a judgment in favor of plaintiff against all defendants in solido in that amount, limiting Phoenix to its policy amount, further granting recovery to intervenor and granting recovery to third party plaintiffs, Service Drayage and Phoenix, against third party defendant, American, for such amounts as they may pay under the judgment. All defendants appealed.

There are a number of issues raised by the various parties on this appeal. The basic issue is the finding of the jury that Bersuder's negligence was the proximate cause of the accident. This largely determines the relevancy of the other issues to a final determination of the case. As is usual in a case where there are a number of witnesses, there are conflicts in testimony which must be resolved by the finder of facts. The reasons for the conflicts are as varied as the conflicts themselves, and, of course, there is no certain way in which the appellate court can read the mind of each individual juror in his determination of the facts of the case.

In this case, the testimony of Bersuder is in conflict not only with the testimony of the other witnesses, but also in conflict within itself. Its variance from positive fact and from the preponderance of the evidence makes it unworthy of belief. For example, Bersuder testified that the electric wire was 12 to 15 feet above the ground, yet, the evidence presented by representatives of New Orleans Public Service, Inc., shows the distance to be 31 feet. This is not simply an error in estimating distance because Bersuder knew precisely how long the boom of his crane was (40 feet plus 5 feet height of platform). He originally stated that he placed the top end of the boom 2 feet away from the wire, and, upon being asked to explain the discrepancy in distance, he changed his testimony and placed the wire abreast of the middle section of the boom. (Tr. 54--55). The chart for this crane placed in evidence as 'Ryan Crane #1' shows the height of the top of this boom above the ground is 34 feet at an elevation of 45 . The importance of these measurements can be immediately realized when one considers that Bersuder's explanation of the accident is that plaintiff or Struggs pulled the cable into the electric power line. The block hook at the end of the cable weighed about 450 pounds plus the weight of the chains and cable and one or two men may possibly pull it sideways so that the cable could move some 2 feet at about the midsection. It is a sheer impossibility to move the chains and block hook far enough sideways so that the top end of the cable, hanging from a boom only 3 feet above the electric power line, could move 2 feet sideways.

A line (the cable) suspended from a fixed point (the top of the boom) and running to a perpendicular base (the ground) would form a triangular figure when moved along the base. Not even considering that the cable is flexible and not a rigid line, the application of simple mathematical and geometric formulae demonstrates that to move a point on the cable 3 feet from the apex or boom a distance of 2 feet on a perpendicular plane would require moving the cable, 34 feet long, a distance in excess of 22 feet along the ground. See Chaney v. Brupbacher, 242 So.2d 627 (La.App.4th Cir., 1970) for a similar application. Considering that the cable in question is in reality flexible, and that there is concededly a 450 pound weight near the end thereof, the impossibility of this event becomes obvious. Contact with the electric power line could only be made by the movement of the boom itself.

Another important conflict with provable fact is Bersuder's measurements of the tank that was to be moved. He testified that the tank was 4 feet in diameter and 8 feet long. (Tr. 27-28). The actual measurements of the tank were 5 feet wide, 6 feet high and 18 feet long. (Tr. 252--53). Here again it is important to consider if this is simply miscalculation or a deliberate distortion of fact. He testified that a third of the tank was protruding from beneath the electric wire towards the crane. (Tr. 35). Therefore, he placed the boom and cable 2 feet from the electric wire to shift the tank. His measurements thus correspond to his actions. However, the measurement of 18 feet, the length of the tank, causes a protrusion of 6 feet and there is no necessity to bring the boom 2 feet from the electric power line.

There were two very important conflicts in Bersuder's testimony itself. Early in his testimony Bersuder stated that he had locked his boom in place after positioning it. As he testified the second time to locking it, he was confronted with a prior inconsistent statement and when explanation was sought, he changed his testimony and admitted that the boom had never been locked at any time before the injury. (Tr. 52--53). Additionally, Bersuder testified that the first time he saw Struggs before the injury was when Struggs and plaintiff began to pull the chains immediately before the electricity hit. When later confronted with another prior inconsistent statement concerning this, he again changed his testimony and admitted to having seen Struggs before that time and before they began the loading operation. (Tr. 62--63). The evidence shows that he had Struggs move his truck so he could get his crane into position.

Certainly the jury could not have placed much value on the testimony of this witness, who can be discredited on almost every material fact of the accident. The main items that stand out in Bersuder's testimony are his admissions that he placed his crane's boom and cable within 2 feet of the power line, that he did not lock the boom to keep it from moving, and that he did not open the hatch on the top of the cab to give him clear visibility overhead.

Moving to a consideration of all of the evidence presented, we conclude, as did the jury, that Bersuder was negligent and that his negligence was the proximate cause of the accident. We believe it to be negligence to place his boom and cable so close to the high power line without locking the boom and ensuring that the boom and cable could swing no closer. Additionally, he was engaged in...