Dempster Bros., Inc. v. Duncan

• Decision Date: 05 August 1969
• Citation: 452 S.W.2d 902,61 Tenn.App. 88
• Parties: DEMPSTER BROTHERS, INCORPORATED v. Fay B. DUNCAN, widow and next of kin of Jim David Duncan.
• Court: Tennessee Court of Appeals

Page 902

452 S.W.2d 902

61 Tenn.App. 88

DEMPSTER BROTHERS, INCORPORATED v. Fay B. DUNCAN, widow and next of kin of Jim David Duncan.

Court of Appeals of Tennessee, Eastern Section.

Aug. 5, 1969 Certiorari Denied by Supreme Court Dec. 1, 1969.

Frantz, McConnell & Seymour, Knoxville, for appellant.

Paul E. Dunn, Knoxville, Morgan & Garner, Chattanooga, for appellee.

OPINION

COOPER, Judge.

Mrs. Fay B. Duncan sued Dempster Brothers, Inc., for damages for the wrongful death of her husband, J. D. Duncan, who died from injuries received in a fall from a crane ladder in the Dempster plant in Knoxville.

Mr. Duncan, an employee of the Kalthoff Heating and Sheet Metal Company, was on defendant's premises under instructions from his employer to relocate and vent several gas space heaters. Mrs. Duncan averred that her husband, in the course of his assigned task, climbed a stationary steel ladder normally used to give access to an overhead crane; that, while on the ladder, he came in contact with an electrically charged rail or angle iron used to provide power to the crane and was knocked from the ladder to the concrete floor of the building. Mrs. Duncan charged, in substance, that the defendant was negligent (1) in continuing to maintain the electric current through the rail when it knew the task assigned Mr. Duncan would require him to work in close proximity to the charged rails, (2) in failing warn Mr. Duncan of the electrically charged rails, and (3) in failing to mark or identify the rail as carrying an electric current.

The defendant, in its special pleas, denied all allegations of negligence and plead contributory negligence on the part of Mr. Duncan. Subsequently, the defendant amended its special plea to charge that the invitation to be on the premises of Dempster, extended to Mr. Duncan as an employee of Kalthoff, did not extend to use of the crane ladder, and that Mr. Duncan was a trespasser at the time he received the injury which caused his death.

On trial, the jury returned a verdict for the plaintiff in the amount of $100,000.00. The trial judge, on overruling defendant's motion for a new trial, approved the verdict and entered judgment accordingly.

On appeal, the defendant insists that there is no material evidence in the record tending to show that the defendant was guilty of any act of negligence which proximately caused J. D. Duncan's death, and that the evidence shows, without dispute, that Mr. Duncan was the author of his own misfortune.

In considering these issues, our review of the evidence is 'governed by the rule, safeguarding the constitutional right of trial by jury, which requires us to take the strongest legitimate view of all the evidence to uphold the verdict, to assume the truth of all that tends to support it, to discard all to the contrary, and to allow all reasonable inferences to sustain the verdict.' D. M. Rose & Co. v. Snyder, 185 Tenn. 499, 508, 206 S.W.2d 897, 901 and cases there cited.

When so reviewed, the record reveals that the defendant converted a shipping and parts storage building into a building to be used for the final assembly of the 'Dumpmaster,' a type of heavy equipment manufactured by Dempster. The converted building is 100 feet long (running north and south), and is 130 feet wide (running east and west). The building is of steel construction, with the roof and super-structure of the building being supported by 12 steel columns or I-beams spaced along either side of the center bay of the building.

The center bay, which is 65 feet wide, is considerably higher than the two outer bays or wings. An electrically operated overhead crane, which could traverse the entire length of the building from north to south, was installed in the center bay. The crane operated on a 440-volt current which passed through 3 rails, or angle irons, mounted along the west or inner side of the steel columns standing along the east side of the center bay. The lowest rail was approximately 20 feet above the floor.

Power for all other electrical installations in the assembly building passed through a buss duct or conduit fastened to the same steel columns but on the side opposite to the rails. The buss duct also carried a 440-volt current.

Access to the crane was by a steel ladder permanently mounted on a steel column on the east side of the center bay. The crane rails or angle irons weer so located with respect to the ladder that, according to Professor Hobart Myer Scull,

'* * * (I)f you climbed up that ladder, and then started to climb higher, there was one pipe in there to grab, but if you tried to go higher than that, these steel angles were a natural thing to grab. They almost looked like a hand-hold put there for that purpose.'

A panel or wire screen was mounted on the crane cab to keep the crane operator from coming into contact with the electrically charged rails while entering or leaving the crane cab or while operating the crane. This protection moved with the crane, leaving the electrically charged rails uncovered when the crane was at a site other than its terminus. There were no signs at the site of the permanent ladder warning that an electrical current passed through the rails, nor were there any signs restricting the use of the ladder. Neither was the rail carrying the electrical current marked in any way.

The conversion of the building to a new use by Dempster necessitated changes in the building's heating system. Defendant contacted Kalthoff, the decedent's employer, and contracted with him to relocate the gas space heaters then in the building, to install two additional heaters, and to vent all heaters in the building so that the gas fumes would be exhausted into the upper part of the center bay at a point higher than the crane cab. It was understood generally that Kalthoff would furnish tools and equipment necessary to complete his contract; however, Kalthoff was free to use Dempster's equipment as a matter of convenience.

Kalthoff's contract called for the heaters to be mounted on the north side of designated steel support columns, with the vent pipes to go up the east side of the column through the narrow space between the column and the side of the middle bay as it rose above the side bays. The vents then would be on the opposite side of the support column from the charged rail, and on the side where the buss duct was located. One of the columns designated as the support for a heater was the column to which the permanent steel ladder giving access to the crane was located.

J. D. Duncan and his helper, working together, mounted the heaters on the designated support columns, including the column to which the crane-access ladder was attached. Duncan then climbed the access ladder, ostensibly to survey the upper reaches of the middle bay prior to extending the vent pipe into this area, stood on the extreme top rung of the ladder or frame surrounding the ladder, grasped the rail or angle iron, received an electrical shock and fell to the floor.

The testimony shows no employee or official of Dempster specifically warned Mr. Duncan that an electrical current flowed through the crane rails, though it was known to Dempster officials that the task assigned Kalthoff Heating and Sheet Metal Company would require Mr. Duncan, or his helper, to work in close proximity to the crane rails and/or the buss duct. It was further shown that on other occasions, when Dempster employees were working in the upper area of the center bay, current to the crane rails was cut off.

James A. Asbury, an employee of Dempster, testified he cautioned Duncan to watch out for the 'hot stuff' up there; however, Mr. Asbury admitted he was some 30 feet away from Duncan at the time he made the statement and could not say Duncan heard him.

Mr. Shirley Haun, who was employed by the Wilson Contruction Company on Dempster premises, testified he told...