Echevarria v. United States Steel Corporation

• Decision Date: 01 April 1968
• Docket Number: No. 15789.,15789.
• Citation: 392 F.2d 885
• Parties: Jose Rivera ECHEVARRIA and Fortunato Rivera Echevarria b/n/f Jose Rivera Echevarria, Plaintiffs-Appellees, v. UNITED STATES STEEL CORPORATION, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

392 F.2d 885 (1968)

Jose Rivera ECHEVARRIA and Fortunato Rivera Echevarria b/n/f Jose Rivera Echevarria, Plaintiffs-Appellees, v. UNITED STATES STEEL CORPORATION, Defendant-Appellant.

No. 15789.

United States Court of Appeals Seventh Circuit.

February 27, 1968.

Rehearing Denied April 1, 1968.

Harlan L. Hackbert, Jeremiah Marsh, Chicago, Ill., G. Edward McHie, Hammond, Ind., for defendant-appellant.

Saul I. Ruman, Hammond, Ind., for plaintiffs-appellees.

Before MAJOR, Senior Circuit Judge, and CASTLE and KILEY, Circuit Judges.

MAJOR, Senior Circuit Judge.

This action was brought to recover damages for personal injuries sustained by Fortunato Rivera Echevarria, an infant, resulting from defendant's alleged negligence, and for medical expense and loss of services to his father, Jose Rivera Echevarria. The case was tried to a jury which returned verdicts favorable to plaintiffs, assessing the infant's damages at $40,000 and the father's at $5,000, upon which judgments were entered. Defendant's post-trial motions for judgments notwithstanding the verdicts or, in the alternative, for a new trial were denied, and defendant appeals from both judgments.

Inasmuch as defendant raises no question with respect to the amounts of the verdicts, there is no occasion to consider the evidence as to the nature and extent of Fortunato's injuries or his medical treatment and expense.

The accident occurred on June 14, 1963, in defendant's plant at Gary, Indiana, referred to as the Buffington plant, comprising about 600 acres. It is located along Lake Michigan and is bordered on the west by Cline Avenue, the boundary between the cities of Gary and East Chicago. The plant buildings are located generally in the center of the property and are reached by a private road running off Cline Avenue. A tract of land in the northeast corner of the intersection of Cline Avenue and the private road was leased to the Board of Park Commissioners of East Chicago for use as a playground. Immediately north of the playground and between it and the plant buildings are the main line tracks of the Baltimore and Ohio and the New York Central railroads. Adults and children traveled through the open area west of the plant buildings, going from the playground to Lake Michigan to fish or swim.

On the occurrence date, Fortunato, 8½ years old, with a mental capacity of a child of 5, went to the playground with his brother, Iran, 11½, and his friend, Manuel Carrion, 15. Fortunato testified that after playing on the swings he saw a pigeon flying, which he attempted to catch by running after it; he went through a hole in the playground fence and crossed the railroad tracks into defendant's plant; he followed the pigeon which flew to the top of defendant's high voltage electrical transformer located west of what was called the finishing mill of the lumnite plant, climbed a ladder to the roof of the building, went across the sloping roof to a point opposite the transformer, climbed over the top of a parapet or extension of the wall which was 2'7" higher than the roof, and slid from a projecting drainpipe down to the top of the transformer, which was 18 to 24" from the west wall of the finishing mill. Other boys had chased pigeons on defendant's premises, and one boy "actually caught" a pigeon.

Plaintiff and his brother both testified that there was a permanent steel ladder and a wooden ladder, leading to the roof of the finishing mill;¹ that it was the wooden ladder on which plaintiff climbed, and that it was close to the transformer. While on the transformer, he came in contact with the electrical current by which he was thrown to the ground, sustaining the injuries of which he complains. The top platform of the transformer was over 11' from the ground and was the only part where a person was exposed to electrical current. The shell of the transformer was grounded so that there was no danger of contact with anyone standing on the ground.

A hole in the fence, long in a state of disrepair, permitted easy access from the playground to the plant premises. Aerial photographs were introduced which purport to show paths leading from the playground toward the plant buildings. One witness testified that a path led directly from the playground to the finishing mill near where the transformer was located. It is readily inferable, in fact substantially conceded by defendant's witnesses, that defendant made no effort to prevent trespassing. It employed no guards to patrol the premises regularly and the sole watchman was stationed at the main gate.

Plaintiff's expert witness testified, over defendant's objection, that defendant's transformer installation was not "in keeping with the customary safety guards used for such installations in this area." The admission of this testimony, as subsequently shown, is relied upon as ground for reversal.

While the evidence viewed in the light most favorable to plaintiffs, as it must be, shows that it was a matter of common knowledge among defendant's employees that children as well as adults trespassed upon defendant's premises and in and around its buildings, there was no evidence that any trespasser, adult or infant, was seen on the roof of the finishing mill or on top of the transformer previous to the occurrence in issue.

This being a diversity action, the issue of liability must be determined by Indiana law. Defendant urges as grounds for reversal: (1) that the trial court erred in submitting the issue of defendant's negligence to the jury under the "dangerous instrumentality rule"; (2) assuming that such rule is recognized in Indiana, that the evidence was not sufficient to justify its submission; (3) that the court erred in admitting the testimony of an expert witness as to customary standards of care in electrical installations, and (4) that the court erred in withdrawing from the jury the issue of the father's contributory negligence.

As a prelude to our discussion, we think that defendant's transformer, which carried a 6600 volt current along its top, was a dangerous instrumentality, under Indiana law. This court, in Cole v. American Bridge Co. et al., 152 F.2d 157, 160, cited numerous cases, including Ayrshire Coal Co. v. Wilder, 75 Ind.App. 137, 129 N.E. 260, for the statement:

"The courts generally, including those of Indiana, have recognized that electricity is a dangerous force and that a person or company handling it is bound not only to know the dangers incident thereto but is obliged in its use to exercise a degree of care commensurate with its danger."

No Indiana case, or any other, is called to our attention which has held otherwise.

Defendant's main target on this appeal is the following instruction given by the court:

"You are instructed that a person who maintains a dangerous instrumentality on his premises owes a duty to infants to use reasonable care to protect or guard the dangerous agency or instrumentality, or to give timely warning of such condition after having knowledge of it. Where the person could have reasonably anticipated that children might come into contact with the dangerous agency or instrument, and such contact is reasonably sure to inflict serious injury, such person should take whatever steps are reasonably necessary to prevent injury to those who are likely to come into contact with the dangerous agency or instrumentality although such persons may be trespassers."

The proposition thus stated was taken almost verbatim from Neal, Adm'r v. Home Builders, Inc., 232 Ind. 160, 111 N.E.2d 280, 290, 713.

In the trial court defendant objected to this instruction on the ground that it "did not correctly state the law of Indiana as to the liability of a landlord to one who is trespassing on its premises and is there exposed to any dangerous instrumentality," with the further statement, "The instruction may state a rule that is applicable to liability of a defendant to persons who are trespassing on the property of a third party, or perhaps liability under attractive nuisance doctrine * * *."

Defendant's theory in the trial court, as here, is emphasized by its tendered and rejected instructions, as follows:

"The owner or occupant of premises owes no duty to a trespasser thereon, except to refrain from wilfully or intentionally injuring him after discovery of his presence. An owner or occupant of premises is not under a duty to use ordinary care to see that his premises are reasonably safe for a trespasser or licensee.

"A trespasser or licensee takes the premises on which he travels as he finds them, with all their attendant risks and dangers, and if you find that the plaintiff Fortunato went upon the roof of the building or on the platform of the transformer without the invitation of the defendant, as a mere trespasser or licensee, your verdict should be for the defendant and against both plaintiffs."

Defendant's theory thus advanced ignores the "dangerous instrumentality rule" and, more importantly, the fact that the infant plaintiff was admittedly a person non sui juris.

Defendant seeks to escape the effect of the pronouncement in Neal relative to the dangerous instrumentality rule with the assertion that it is "100-proof dicta which attains the dignity of neither doctrine nor precedent." We think this is an exaggerated evaluation of the court's ruling. True, the rule was not pleaded, but the court in a lengthy opinion analyzed and discussed numerous decisions involving a dangerous instrumentality, among which were those relied upon by plaintiff. As we read the opinion, it was in explanation of or response to such cases that the court made the pronouncement complained of, even though it was not applicable to the facts of the case. While the case might have been decided without the pronouncement, it was relevant to the presentation as made and has been so recognized.

The court in Neal cited Harris v. Indiana General Service Co., 206 Ind. 351, 189 N.E. 410, in which the trial court...