Dorrin v. Union Elec. Co., 39454

• Decision Date: 03 April 1979
• Docket Number: No. 39454,39454
• Citation: 581 S.W.2d 852
• Parties: David M. DORRIN, a minor by Harry Dorrin, his next friend, Plaintiff-Respondent, v. UNION ELECTRIC COMPANY, a corporation, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 852

581 S.W.2d 852

David M. DORRIN, a minor by Harry Dorrin, his next friend Plaintiff-Respondent, v. UNION ELECTRIC COMPANY, a corporation, Defendant-Appellant.

No. 39454.

Missouri Court of Appeals, Eastern District, Division One.

April 3, 1979.

James J. Virtel, Jerry B. Wamser, Schlafly, Griesedieck, Ferrell & Toft, St. Louis, for defendant-appellant.

Charles E. Gray, Thomas C. DeVoto, Gray & Ritter, St. Louis, for plaintiff-respondent.

SNYDER, Presiding Judge.

Plaintiff David Dorrin, an eighteen year old college freshman, while in a tall tree located between Queeny Park and Mason Road in St. Louis County, came into contact with an uninsulated 7200 volt electric line maintained by defendant Union Electric. Dorrin suffered severe electrical burns on his back, right shoulder, left leg and left thumb, but survived the shock and ensuing fall.

Plaintiff tried the case on the theory that Union Electric was negligent in maintaining an uninsulated wire within the probable reach of persons who might climb the tree. Union Electric relied on the affirmative defense of contributory negligence. Ten members of the jury returned a verdict for Union Electric. Upon plaintiff's motion, a new trial was granted on the ground that prejudicial error was committed in giving defendant's verdict-directing Instruction No. 3, which submitted the defense of contributory negligence. Union Electric appeals. In this opinion the parties will be referred to by their trial court designations or by name.

Reversed and remanded, with instructions to reinstate the verdict for the defendant, Union Electric, and enter final judgment thereon.

Dorrin and his two companions, Bill Rea and Steven Clerk, left Rea's house late in the afternoon of September 26, 1974, to go to Clerk's house to play pool. On their way over Mason Road they passed Queeny Park. Because Queeny Park had just been opened to the public that day, they decided to stop and look around the park. After parking their automobile, the three got out of the car, crossed Mason Road from east to west, walked under Union Electric's wires and entered Queeny Park.

After walking in the park for fifteen or twenty minutes, and enjoying the clear, warm fall afternoon, they decided to return to their car. As they approached Mason Road from the west, they discovered a tall tree with a set of wooden steps nailed to its trunk. The tree was about sixty feet high and had several large branches extending upward from the trunk and toward Mason Road. The boys decided to climb the tree to get a better view of the park and the surrounding area. Dorrin was the first one into the tree and climbed higher than his two companions. Although it was late in September, the tree was still in leaf. From this point on, the versions of the accident given by Dorrin and the witnesses differ.

Dorrin testified he climbed until he was standing on the sixth of the eight wooden steps. Two Union Electric 7200 volt primary wires and one common neutral or ground wire passed the tree on the east side. They were supported by poles at a height of approximately thirty-five feet for the primary wires and twenty-nine feet for the neutral. Dorrin's head was one or two feet above the primary wire, closest to the tree. According to Dorrin, he was straddling the main limb, pressing his chest against it, while holding onto the upper wooden steps. The limb was twelve inches in diameter and did not bend or sway under his weight. When Dorrin was in this position he faced east, toward the electric wires, and looked out over Mason Road. The trunk of the tree was between him and the wires. To view the park he would have had to turn around or look back over his shoulder. Twenty-two inches separated the tree and the closest uninsulated primary wire.

Dorrin and Bill Rea believed they were in the tree for fifteen to thirty minutes and never climbed above the primary wire. Dorrin, Rea and Clerk denied seeing the Union Electric wires and poles at any time during the afternoon.

Dorrin's version of the accident was that after about fifteen minutes of standing on the wooden step, he turned his body to the right, keeping the limb in front of him. Suddenly, he was "grabbed by some force" he saw a flash of light and then fell to the ground. Dorrin believed he came into contact with the wire and then fell; he specifically denied falling into the wire. Neither Clerk nor Rea could say how Dorrin came into contact with the wire.

Plaintiff's witness McDowell, who lived on Mason Road, close to the scene of the accident, testified the boys were in the tree when he came home from work at about 4:10 p. m. If the accident happened at or after 5:45 p. m. (as the evidence indicated), the boys would have been in the tree an hour and one-half, or more. McDowell also believed their position in the tree was well above the primary wire.

Defendant's witness Hagar arrived at his home on Mason Road about 4:30 p. m. and saw three young men in the tree at a point six to eight feet above the wires. According to Hagar, the three stayed in this position for some time, were loud and rowdy, and shouted obscenities at a young girl passing by the tree. Hagar placed the time of the accident between 6:00 and 6:15 p. m. He heard a limb crack and then a loud explosion; he looked out his dining room window and saw Dorrin hit the ground.

Based upon the nature of the burns suffered, Dorrin's medical witness believed the electric current entered the left side of the small of Dorrin's back and exited through his left thumb and right shoulder. Plaintiff's expert witness, Joseph Movshin, an engineer, held the opinion that Dorrin was climbing or circling around the tree limb and touched his back to the uninsulated wire. He did not believe the electric current in the wire could jump or arc 34 inches under the conditions then present.

Union Electric's verdict-directing Instruction No. 3 read as follows:

Your verdict must be for the defendant whether or not defendant was negligent if you believe;

First, Plaintiff knew or by the use of ordinary care could have known of the presence of an electric wire near the tree and knew or by the use of ordinary care could have known there was a reasonable likelihood of injury to himself if his body contacted said wire; and

Second, while plaintiff was in the tree he either: failed to keep a careful lookout for the electric wire, or caused his body to contact the electric wire; and

Third, Plaintiff's conduct in any one or more of the respects submitted in paragraph Second, was negligent; and

Fourth, such negligence of plaintiff directly caused or directly contributed to cause any damage plaintiff may have sustained.

The term "negligence" as used in this instruction with respect to plaintiff David Dorrin means the failure to use that degree of care which an ordinarily prudent boy of the same age, capacity and experience would use under the same or similar circumstances.

MAI 32.01 modified

MAI 11.04.

In his motion for new trial, plaintiff contended the instruction contained eleven "prejudicial errors." Eight of these were sustained by the trial court. In substance, the eight alleged defects or errors were:

(1) The instruction overemphasized the duty of lookout by submitting the duty in both Paragraphs First and Second;

(2) Paragraph First violated Rule 70.02(a) because it submitted detailed evidentiary facts and was not simple, brief and impartial;

(3) Paragraph First submitted "Could have known" instead of "Should have known" in connection with plaintiff's duty;

(4) The instruction, by submitting plaintiff "caused his body to contact the electric wire," allowed the jury to consider conduct of the plaintiff which was not the proximate cause of his injury;

(5) The language "caused his body to contact the wire" amounted to a roving commission and allowed the jury to find in favor of defendant if "any" of plaintiff's damages were the result of any conduct of plaintiff which caused his body to touch the wire (6) The instruction did not require the jury to find the electrical burns were proximately caused by plaintiff's negligence in causing his body to contact the wire;

(7) The instruction gave the jury a roving commission to speculate on what conduct of plaintiff constituted negligence; and

(8) Under the evidence plaintiff was not under a duty of lookout.

Generally, in reviewing the action of the trial court in ruling on a motion for new trial, an appellate court is more liberal in upholding the action when the motion is granted than when it is denied, because reversing the trial court's action in denying a new trial would require a reversal of a judgment. Pollard v. General Elevator Engineering Company, 416 S.W.2d 90, 96 (Mo.1967); Royal Indemnity Company v. Schneider, 485 S.W.2d 452 (Mo.App.1972).

However, this rule of liberality must be interpreted and applied in the light of cases holding that " '(t)he trial court's power "to grant a new trial is discretionary only as to questions of fact and matters affecting determination of issues of fact. There is no discretion in the law of a case, nor can there be an exercise of sound discretion as to the law of a case. " ' " Wims v. Bi-State Development Agency, 484 S.W.2d 323, 326 (Mo. banc 1972); Tate v. Giunta, 413 S.W.2d 200 (Mo.1967).

In Highfill v. Brown, 340 S.W.2d 656 (Mo. banc 1960), the trial court's action in granting plaintiff's motion for new trial was reversed and the case remanded with instructions to grant judgment for defendants. Plaintiff had contended in his motion that defendants' verdict-directing instruction submitting the issue of contributory negligence was prejudicially erroneous. The supreme court held that "(w)hether the instruction was erroneous and, therefore, prejudicial was a question of law to be determined upon the record presented. No fact question was involved." Highfill, id., 664. Therefore, the granting of a new trial was not within the discretion of the...