Donovan v. Union Elec. Co., 33595
| Decision Date | 28 April 1970 |
| Docket Number | No. 33595,33595 |
| Citation | 454 S.W.2d 623 |
| Parties | James DONOVAN, Plaintiff-Appellant, v. UNION ELECTRIC COMPANY, a Corporation, Defendant-Respondent. |
| Court | Missouri Court of Appeals |
Lawrence O. Willbrand, St. Louis, for plaintiff-appellant.
Keefe, Schlafly, Griesedieck & Ferrell, Francis L. Barkofske, St. Louis, for defendant-respondent.
Plaintiff sued defendant for severe burns sustained when a boom truck being operated by plaintiff received an electrical charge of 7,200 volts from an electrical line owned by defendant. Defendant's motion for a directed verdict at the close of all the evidence was overruled and the case was submitted to the jury. A mistrial resulted when the jury was unable to agree upon a verdict. Defendant's after trial motion for judgment in accordance with motion for a directed verdict at the close of all the evidence was sustained. Judge Bloom in an excellent memorandum opinion analyzed the evidence and explained the court's reasoning. The motion was sustained because: (1) The evidence failed to establish negligence on part of defendant; (2) Plaintiff was guilty of contributory negligence as a matter of law. Plaintiff appealed.
In considering the questions of negligence and contributory negligence, we view the evidence from a standpoint favorable to plaintiff, give plaintiff the benefit of all reasonable inferences therefrom, give plaintiff the benefit of any of defendant's evidence favorable to plaintiff and not contrary to the fundamental theory of his case, and disregard defendant's evidence unfavorable to plaintiff. We so state the evidence.
The plaintiff, forty years old, was a truck driver and operator of a crane truck for an independent contractor who sold and supplied concrete meter boxes to the St. Charles County Water Company. These concrete boxes resembled concrete pipe and weighed approximately 300 pounds. On June 13, 1967 plaintiff who was working alone was delivering these boxes to the St. Charles County Water Company's premises. The water company's office there was formerly a farm house. This property is located south of Highway 70 and is located 'out in (a) farmland' area. Other than the office, a barn and a shed, there are no other buildings around this area. Plaintiff entered this property by means of a service road and then parked this truck on a dead-end lane to unload approximately thirty-five boxes. He had delivered these boxes two or three times a year for three or four years. He had always delivered the boxes to the same open storage area on these premises. His method of unloading these boxes was by using the boom on the truck which moved in a circular direction which enabled him to lift the boxes off the truck, move them away from the truck and deposit them on the ground. Plaintiff operated the boom by the use of a control box which he held in his hand and stood from six to ten feet behind the truck. Plaintiff had been operating this type truck for twelve or fifteen years and other companies also have been using this type boom truck.
Defendant's electric wires extended over the point at which plaintiff was unloading the truck and extended between poles 200 to 300 feet apart. There were four wires over the place where plaintiff was working. These wires looked like telephone wires and plaintiff thought they were telephone wires. The top wire was twenty feet off the ground and there was about three feet vertical separation between the top wire and each of the underlying wires. The top wire was an uninsulated electric wire and carried 7,200 volts. The second wire was an uninsulated neutral wire. The two bottom wires were insulated telephone wires.
The boom on plaintiff's truck could be raised as high as thirty feet. There were no warning signs which indicated that the wires were high voltage electric wires and plaintiff could not determine whether they were insulated. He did not know that they were uninsulated. He would not have unloaded the truck there had there been any warning signs. He did not consider the wires dangerous. He did not want to hit any wires and would not touch the wire with his bare hand because he did not know 'what he was grabbing,' and because it could be dangerous. Plaintiff could not park the truck any other place and still put the boxes where he was supposed to put them. He had unloaded eighteen or twenty boxes before he was injured. In the unloading the boom would come within a foot to a foot and one-half of the wires and the boom would stop between the top wire (voltage wire) and the second wire (neutral wire). To plaintiff's knowledge, the boom did not touch the electric wire. Plaintiff saw a flash towards the end of the boom, was knocked to the ground with the cable from the control box across his chest.
There was a warning sign on the back of plaintiff's truck near the boom controls which read: 'Remember to look up, check for high lines and obstacles above before operating boom up.'
The issue here is whether the plaintiff made a submissible case of primary negligence against the defendant.
An electric company is not an insurer of the safety of persons and its liability is determinable upon principles of negligence. Foote v. Scott-New Madrid-Mississippi Elec. Co-op., Mo.App., 359 S.W.2d 40(2). In this regard, an electric company is obligated to employ the highest degree of care to insulate its transmission lines adequately or to isolate them effectively wherever, in the exercise of such degree of care, it reasonably may be anticipated that others may lawfully come into close proximity to such lines and thereby may be subjected to a reasonable likelihood of injury. Erbes v. Union Elec. Co., Mo., 353 S.W.2d 659, 664. Said another way, the defendant was required to use the highest degree of care to prevent injury which it could reasonably anticipate.
Anticipation or foreseeability of harm or injury because ofacts or omissions of the...
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