Burns v. Carolina Power & Light Co., 6329.
| Decision Date | 29 December 1951 |
| Docket Number | No. 6329.,6329. |
| Citation | 193 F.2d 525 |
| Parties | BURNS et al. v. CAROLINA POWER & LIGHT CO. |
| Court | U.S. Court of Appeals — Fourth Circuit |
John L. Nettles and James P. Mozingo, III, Darlington, S. C. (F. Turner Clayton, Darlington, S. C., on brief), for appellants.
A. Y. Arledge, Raleigh, N. C. (Charles F. Rouse, Raleigh, N. C., on brief), for appellee.
Before SOPER and DOBIE, Circuit Judges, and MOORE, District Judge.
Burns and Nolan filed civil actions in a State Court of South Carolina against J. M. Daley and the Carolina Power and Light Company (hereinafter called Power Company), which were removed to the United States District Court for the Eastern District of South Carolina. The two cases have been consolidated for appeal. Since they involve the same facts, except as to the extent of the injuries, and the same principles of law, we shall consider only the Burns case.
The case was removed to the District Court on the grounds that the complaint did not state a joint cause of action against the resident defendant, J. M. Daley, and Power Company, and did not state a cause of action against the defendant J. M. Daley. On a Petition to Remand, the District Judge sustained the Power Company's contention, and dismissed Daley from the case D.C., 88 F.Supp. 767. Subsequently a trial was had against the Power Company alone. The case was submitted to a jury after the refusal by the Court to grant the defendant's motion for a directed verdict, and a mistrial was had as a result of the inability of the jury to reach a verdict. The motion for directed verdict was then renewed by the Power Company and was granted by the District Judge.
It is alleged in the complaint that Power Company, a public service corporation, served the plant of Consumer's Brick Yard (which was owned and operated by Jones Construction Company), with electricity; and in order to do so it maintained on the premises of Consumer's Brick Yard poles, wires, transformers and other equipment. The plaintiff alleges that he was an employee of Consumer's Brick Yard and on August 17, 1948, was engaged with other employees in unloading a car of coal which was located on an elevated railroad track on the plant premises. The track was parallel to, and approximately 168 feet from, Power Company's power lines.
A crane with a clam shell bucket and a boom 45 feet long were being used to unload the coal, and it became necessary to replace a block on a "monkey line" running from the cab of the crane to the end of the boom and the clam shell. In order to replace the block, the boom was lowered for access to the men working on the ground. While the plaintiff was standing on the ground and holding the "monkey line", the boom was raised by the operator of the crane, J. M. Daley, up and into contact with the power line of Power Company. Electricity thereby was conducted to plaintiff through the metal "monkey line" and injured him seriously.
Power Company's transmission line originally was constructed and at the time of the accident was maintained upon its right of way. It consisted of three bare wires suspended overhead between wood poles, together with appurtenant facilities. The line and right of way were remote from the buildings and other facilities at the brick yard, and the line had been maintained and operated at this location for more than twenty years. At the scene of the accident, the wires were more than 20 feet above the ground. The line was maintained and operated in accordance with all statutory requirements, including the rules and regulations of the South Carolina Public Service Commission.
Prior to the accident, it seems, no crane or similar equipment had ever been operated at the brick yard beneath the transmission line, nor had any other operations thereof taken place under the line within Power Company's right of way. Power Company had no actual knowledge that a crane was being operated in connection with the unloading of coal at the coal trestle, which was located more than 150 feet on the north side of its line. Moreover, a crane had apparently never been used for that purpose until a few weeks prior to the accident, when a crane was employed there because of an emergency resulting from coal strikes. There appears to have been no necessity for that crane to be operated beneath Power Company's line or nearer to it than its place of use at the coal trestle. Despite the allegations in the complaint, the presence of the crane beneath the line at the time of the accident is not satisfactorily explained by the evidence. The manager of the brick yard testified that there was no reason or necessity for it to be there on that occasion. The transmission line was in upon and unobstructed view, and upon cross-examination, Burns and J. M. Daley each testified that, although he did not see the wires prior to the accident, he could have seen them if he had looked, but he did not look.
We are faced on this appeal with two questions: (1) Did the District Judge err by failing to remand the case to the State Court; and (2) Did the District Judge err in directing a verdict in favor of the defendant, Power Company?
We think the District Judge erred in holding that the complaint did not state an ordinary cause of action against Daley, the crane-operator, based on negligence. Thus the complaint states that Daley was negligent in these particulars:
(k) In that said J. M. Daley failed to use due care in placing said crane in a position where it could not come in contact with said high voltage lines.
"(1) In that said J. M. Daley failed to use proper care in watching out for said high voltage lines when raising said boom." Even though the complaint may have been subject to a motion to make more definite and certain, yet it did state a cause of action against Daley based on his negligence. See, Ostrom v. Edison, D.C., 244 F. 228; Albi v. Street & Smith Publications, 9 Cir., 140 F.2d 310; Locke v. St. Louis-San Francisco Railway Co., 8 Cir., 87 F.2d 418. And we might point out that the District Judge, in his order directing a verdict for Power Company, stated: "Daley's act in raising the boom without looking overhead is another instance of gross negligence." Again, the District judge, in his charge to the jury, said: "If we were trying a case against the Jones Construction Company or Daley, then you would have a clear case to decide."
We think, however, the remand was properly denied on the ground that Burns, having claimed and received compensation under the South Carolina Workmen's Compensation Act from his employer, has no cause of action against Daley. Thus Section 7035-10, Code...
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...See also: State for use of Bahner v. Consolidated Gas, Electric Light & Power Co., 159 Md. 138, 150 A. 452; Burns v. Carolina Power & Light Co., 4 Cir., 193 F.2d 525; Croxton v. Duke Power Co., 4 Cir., 181 F.2d 306; Banks v. Central Hudson Gas & Electric Corp., 2 Cir., 224 F.2d 631; America......
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