Clinton Foods, Inc. v. Youngs

• Decision Date: 11 May 1959
• Docket Number: No. 15887.,15887.
• Citation: 266 F.2d 116
• Parties: CLINTON FOODS, INC., a corporation, Appellant, v. Marvin YOUNGS, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

266 F.2d 116 (1959)

CLINTON FOODS, INC., a corporation, Appellant, v. Marvin YOUNGS, Appellee.

No. 15887.

United States Court of Appeals Eighth Circuit.

April 17, 1959.

Rehearing Denied May 11, 1959.

Craig Cook and Wayne G. Cook, Davenport, Iowa (Cook, Blair, Balluff, Wedean & Nagle, Davenport, Iowa, on the brief), for appellant.

Carl H. Lambach, Davenport, Iowa (Margaret Stevenson, Davenport, Iowa, Isador Katz, Rock Island, Ill., Lambach, Stevenson & Dircks, Davenport, Iowa, and Reidy, Katz, McAndrews, Durkee & Telleen, Rock Island, Ill., on the brief), for appellee.

Before GARDNER, Chief Judge, and SANBORN, WOODROUGH, JOHNSEN, VOGEL, VAN OOSTERHOUT, and MATTHES, Circuit Judges.

MATTHES, Circuit Judge.

In this diversity case, Marvin Youngs, plaintiff below, employee of contractor engaged in work on defendant's premises, obtained a jury verdict and judgment for $80,000, as damages for personal injuries received from electrical shock. Clinton Foods, Inc., defendant below, filed timely motions for directed verdict and for judgment notwithstanding the verdict, which were denied, and this appeal followed. We shall refer to the parties as designated in the trial court.

We have for determination the sole question of whether, under the evidence, the jury could properly find that the defendant negligently failed to give adequate and sufficient warning in view of the circumstances existing when plaintiff was injured. Since the primary question is focused upon the sufficiency of the evidence, defendant cannot prevail unless it is determined that there was no reasonable basis upon which findings of negligence and defendant's ultimate liability for plaintiff's injuries could be based. See Gowing v. Henry Field Co., 225 Iowa 729, 281 N.W. 281, 283, where the court stated:

"In passing on defendant\'s motion to direct a verdict, the plaintiff is entitled to have the evidence considered in the light most favorable to him. * * * `Every inference reasonably permissible in support of the issue should be carried to the aid of the evidence.\' McWilliams v. Beck, 220 Iowa 906, at page 909, 262 N.W. 781, at page 782."

See, also, Egan Chevrolet Co. v. Bruner, 8 Cir., 102 F.2d 373, 377, 122 A.L.R. 987. The case rests upon this factual foundation:

Defendant, as the owner of a food processing plant at Clinton, Iowa, entered into a contract in 1953 with Pittsburgh Piping and Equipment Company, plaintiff's employer, for the installation of a new turbine on defendant's property. In order to effectuate the installation, Pittsburgh was required to lay a 20-inch pipe line on the premises of defendant. The controlling plans and specifications, as prepared by defendant, required that the pipe line be laid on and along a portion of defendant's property which was enclosed. In the enclosed area were two banks of electrical transformers. A photograph and other evidence reveal that one set of transformers, referred to as "emergency transformers," has the appearance of three cylindrical objects of metal, approximately 4 feet in height, with insulated electric wires leading into and out of the top of each cylinder. These "emergency transformers" were resting upon a concrete foundation, the top of which was approximately two feet above the surface of the adjacent ground. It also appears that defendant had its own power plant and generated its own electrical energy, but to ward against a possible power failure in its own plant, electric energy was obtained from the Interstate Power Company, and such energy was transmitted through the emergency transformers. Although they did not feed current into defendant's plant, except on the rare occasions when defendant's own power plant failed, the emergency transformers were, in the words of its mechanical engineer, "kept live all the time because they would all cut in. They were not serving any purpose other than in those rare times." However, the same witness testified that the cylindrical case around each transformer was not "live." "They are grounded out so there is no danger in touching them." Electric current was brought into the emergency transformers by a "feedwire." This is the wire which plaintiff came into contact with and which caused his injuries. It carried from 6,900 to 13,200 volts, and was mounted vertically along the frame supporting the transformers. This wire was covered with insulation. With reference thereto, we have this information from a Mr. Shannon, defendant's mechanical engineer:

"The wire coming down to the rear on Plaintiff\'s Exhibit 5, is the one — the high tension line. It is also shown on Exhibit 3. It comes down and is fastened to an insulator. Loops out here and then goes up into the transformer. Here is disconnecting switches there. * * * The wire that comes down out of this insulator was covered with an insulating substance, but it wasn\'t insulated for that purpose. It happened that it was the right sized wire and they used it. It isn\'t customary to insulate that tension of wire and wasn\'t put there for insulation purpose. Normally that wire would be bare because for purposes of insulation, that insulation was absolutely worthless — might just as well not be there."

By the same witness, it was further developed that there was a switch whereby the current could have been cut off from the emergency transformers, but it was not the practice of defendant to open the circuit switches and cut off the current. The defendant's Superintendent of Power in his testimony explained the reason why the defendant considered it necessary to keep these transformers constantly energized, and, among other things, said: "A very temporary shutdown of the emergency transformer, such as 5 minutes, could have endangered our plant."

The current generated by defendant's plant was fed through the other set of transformers mentioned, which were located about twelve feet from the emergency transformers. These transformers, known as "step-down" transformers, carrying 440 V. were not encased, and were described as "corrugated, cylindrical objects," with an exposed bus bar to the rear of them.

In installing or laying of the water main, it was necessary to first dig a ditch near both sets of transformers, described above and it was while the crew of Pittsburgh's men were engaged in laying a section of the water main in the ditch near the emergency transformers, that plaintiff came in contact with the lead-in insulated wire before described. At that time, plaintiff was required to work on an artificially raised ground level, in closer than usual proximity to the emergency transformers and lead-in wire. The events surrounding and immediately preceding the occurrence were described by Pittsburgh's foreman, Edward Morgan, in this manner:

"I saw Mr. Youngs immediately before he got hurt. I was standing on one of the dirt piles north of that emergency transformer bank, facing towards the slough.

"We were putting this piece of pipe in the ditch, and we had a chain fall on this timber over the center of the ditch. We had a rope snubbed on each end of the pipe and Sullivan and I was on the one end and we had it snubbed around a telephone pole, and the other boys, two of them were on the other one or one of them was, or one on the chain fall, I don\'t remember. I know I was on the one line that was around the telephone pole, and we was holding the pipe back snubbing it while it was being dragged in the ditch by the chain fall and as the pipe swung in chaing fall and as the pie swung in the ditch and settled down I looked up, turned to the pump house and looked up and Bud (Youngs) was taking a step or was going off that plank, as I see it, off the plank towards the pump house, and the only thing I think he was going, he was going over to the ladder next to the pump house to go down the ladder to help land the pipe in the ditch. As he stepped in that direction I saw a big flash and a drop of — like a drop in power or short, and that was it * * * Bud fell back I would say north away from the pump house, and he fell and his shoulders hit across the timber we had across the ditch and his arm fell over the top of the timber and his head, or whichever you want to call it, head or neck, maybe a difference of opinion there, rested up against the angle iron on the corner of that transformer bank. The dark end spot on the angle iron, as it appears on Plaintiff\'s Exhibit 3, is where his head or neck was resting — that burned spot."

The record also establishes that the defendant actively supervised the installation of the project and particularly the laying of the water main. Mr. Shannon, defendant's engineer, testified: "the laying of the water main along the bank on the property was directly under my charge," and "it was my particular job to see that that pipeline was in accordance with specifications * * *."

On the warning issue. There were several signs in and on the enclosure displaying the words "Danger 13,200 Volts." One of these signs was on a pole approximately six feet from the place where plaintiff came in contact with the wire, and the other signs were on the fence enclosing the area. As to oral warnings, there is decided conflict and dispute. However, there was unequivocal testimony from which a jury could find that all oral warnings given by defendant were directed to the open, corrugated transformers and the 440 Volt bus bar, and that there was a total failure to warn of the danger lurking in the lead-in wire to the emergency transformers. On this issue, plaintiff testified:

"We had worked intermittently about 5 days in the area. At the time that they first discussed going through that enclosed area with a pipe line, several of the boys and myself discussed whether or not that was a wise idea. Of course we don\'t design the jobs nor is it our place to say where it goes. Our job is to do it. We discussed that, and the only information or warning that I ever got was the fact of an exposed bus

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