Culver-Stockton College v. Missouri Power and Light Co., CULVER-STOCKTON

• Decision Date: 12 March 1985
• Docket Number: CULVER-STOCKTON,No. 48361,48361
• Citation: 690 S.W.2d 168
• Parties: 25 Ed. Law Rep. 699 COLLEGE, Respondent, v. MISSOURI POWER AND LIGHT COMPANY, Appellant.
• Court: Missouri Court of Appeals

Page 168

690 S.W.2d 168

25 Ed. Law Rep. 699

CULVER-STOCKTON COLLEGE, Respondent, v. MISSOURI POWER AND LIGHT COMPANY, Appellant.

No. 48361.

Missouri Court of Appeals,

Eastern District,

Division Three.

March 12, 1985.

Motion for Rehearing and/or Transfer to

Supreme Court Denied April 26, 1985.

Francis X. Duda, St. Louis, for appellant.

Dennis W. Smith, Canton, for respondent.

CRANDALL, Judge.

Defendant appeals from a $125,050 judgment entered on a jury verdict in favor of plaintiff on a claim for negligence in failing to inspect and properly maintain an electrical power line, which resulted in a fire at a building owned by plaintiff.

Defendant raises seven points on appeal. The first two points claim plaintiff failed to make a submissible case. Point three claims there was no evidence to support the opinion of plaintiff's expert witness who testified about the cause of the fire, and that the expert's testimony invaded the province of the jury. Defendant's fourth and fifth points claim the court erred in admitting evidence and instructing the jury on replacement value of the building. Point six alleges error in admitting testimony of a professor regarding ownership of personal property damaged or destroyed in the fire, because the testimony was based on documents not produced at trial. Defendant's final point claims the verdict was excessive. We affirm.

A fire extensively damaged the west music building on the campus of Culver-Stockton College in Canton, Missouri, on June 5, 1977. Prior to the fire, Professor Grant Kenner saw smoke coming from a power line which ran to the building. He could see two of three wires burned in two. Professor Kenner testified there was a branch of a tree within a few inches of the damaged portion of the cable. Ten to fifteen minutes after seeing the smoking cable, he saw smoke coming from the music building.

David Bader, who was visiting the campus that day, testified he saw "a fire arcing across" the power line. He placed the location of the arcing in a tree just "about halfway or more between the trunk of the tree and outside limbs, the end of them."

The local volunteer fire department responded and fought the blaze. Firemen attempted to enter the building, but a fireman was shocked twice as he walked inside the building. One of the firemen then cut the two "hot" wires on the power line leading to the building to cut off power to the structure. After the wires were cut, the crew returned to go into the building but firemen again were shocked. This time, the third wire which was the neutral wire on the line was cut. After this third wire was cut, there were no more shocks to the firemen.

Defendant had purchased the local power system from the City of Canton in January of 1976.

Defendant's first two points deal with the submissibility of plaintiff's case. We look at the evidence, together with the reasonable inferences arising therefrom, in the light most favorable to the plaintiff. Ward v. McQueen, 670 S.W.2d 176, 177 (Mo.App.1984). First, defendant claims plaintiff failed to establish the cause of the fire or the cause of the failure of the electric cable.

Plaintiff's expert, Dr. Armington, testified specifically that in his opinion the cause of the fire was the melting together of the wires in the cable. The neutral wire, which normally did not carry current, came in contact with a live wire and began carrying current. The current ran through the neutral wire into the building. The ground wire at a water cooler thus became energized, in turn energizing the frame of the water cooler, which energized another ground connection from the frame to a water pipe. This ground wire became very hot, igniting nearby combustible material. The water cooler was the only appliance on in the building at the time of the fire. The cooler was determined to be the place where the fire started. The fact the water cooler was energized explained why the firemen received shocks when they went into the building and began spraying water.

Dr. Armington testified that the failure of the wire was caused by branches rubbing on the cable, and that this rubbing caused the neutral wire to come in contact with a live wire. Another expert testified that evidence of the rubbing would not necessarily be visible because the burning of the wire would destroy any evidence of abrasions. Witness Bader testified he saw a flash and fire in the tree about halfway between the trunk and the outside limbs shortly before the fire was noticed in the building. Witness Professor Kenner testified that he saw the cable smoking. He stated he saw a branch within a few inches of the wire where the fire was.

There was evidence it was windy on the day of the fire, suggesting the branches could have been blown against the wire. There had been a similar problem with the cable failing in the same tree because of the tree rubbing against the wire, and the wire had been bolted at the tree after that occurrence to prevent the same thing from happening. This tree was described as being "dense."

We conclude that plaintiff made a submissible case on the issues of whether the failure of the wire was caused by the branches rubbing against it and whether that failure caused the fire.

Defendant next claims plaintiff failed to establish the fire was caused by any negligent act or omission on its part. We first note the jury was instructed that negligence meant failure to use the "highest degree of care." Plaintiff presented evidence of minimum industry standards which state that trees around power lines should be trimmed or removed, and that power lines should be inspected from time to time as experience has shown to be necessary. There was evidence defendant had a tree-trimming crew in the region and had even done some work on the campus, but had not trimmed the tree in question, nor was there a regular, periodic tree-trimming program. Defendant also had been on the campus to work on the electrical service prior to the fire but had not inspected the line in the tree. A meter reader was on the campus once a month but did not check the wire running through the tree. An employee of defendant knew of a previous problem with the same tree rubbing against a wire and causing it to burn through several years earlier. That employee had put a device in the tree to keep the tree from causing more damage to the wire. An employee of defendant testified the company had trained its workers to be observant and look for problems such as branches too close to wires.

We find that there was sufficient evidence from which the jury could conclude that defendant's negligence caused the fire. Defendant's first point is denied.

Defendant's second point alleges there was no evidence to support the giving of the verdict-directing instruction which read:

Your verdict must be for plaintiff if you believe:

First either:

defendant failed to maintain clearance between the tree and the electrical service line it provided to plaintiff's building, or

defendant failed to properly inspect the electrical service line it provided to plaintiff's building, or

Second, defendant, in any one or more of the respects submitted in Paragraph First, was thereby negligent, and

Third, as a direct result of such negligence, plaintiff sustained damage,

unless you believe plaintiff is not entitled to recover by reason of Instruction Number 8.

Defendant's assertions that there was no evidence of contact between the tree and the line and that there was no evidence the fire was caused by any such contact have already been addressed. The only new allegation in this point is that there was no evidence that any additional clearance would have prevented the fire or that additional inspection would have indicated any problem with the line.

Plaintiff's evidence showed insulation missing from the wire in the tree. It is logical that the branches could not wear away the insulation on the wire in a short period of time. The erosion was a process occurring over time. It was reasonable to infer the abrasion took place during windy conditions and not constantly; that if the defendant had checked the line periodically, it could have detected the hazard of the eroding insulation; and that had the branches been cut back, the hazard would have been eliminated. Defendant's second point is denied.

Defendant's third point alleges error in testimony by Dr. Armington, plaintiff's expert, who gave an opinion regarding the cause of the fire. In response to a hypothetical question, Dr. Armington began to respond:

A. It is my opinion that the careless and improper act of Missouri Power and Light Company in allowing--

* * *

A.--in allowing to exist within that tree for more than a year a condition in which the tree and the wires should--could scrape together to such an extent as to damage the insulation on one of the two insulated conductors to the tree....

Defendant's brief claims the witness was not competent to render this opinion on the legal effects of defendant's conduct, that the opinion invaded the province of the jury, and that there was no evidence that tree branches came in contact with the cable or...