Erbes v. Union Elec. Co.

• Decision Date: 12 February 1962
• Docket Number: No. 1,No. 48501,48501,1
• Citation: 353 S.W.2d 659
• Parties: Oscar ERBES, Respondent, v. UNION ELECTRIC COMPANY, a corporation, Appellant
• Court: Missouri Supreme Court

Page 659

353 S.W.2d 659

Oscar ERBES, Respondent, v. UNION ELECTRIC COMPANY, a corporation, Appellant.

No. 48501.

Supreme Court of Missouri, Division No. 1.

Feb. 12, 1962.

William H. Ferrell, Keefe, Schlafly, Griesedieck & Ferrell, St. Louis, for appellant.

Donald Gunn and Barnhart & Sommers, by Don B. Sommers, St. Louis, for respondent.

HOLMAN, Commissioner.

On October 1, 1957, plaintiff was engaged in his employment as an ironworker in the construction of a new Southwestern Bell Telephone building at the corner of Main and McKinley Streets in the City of Union, Missouri. Upon the date mentioned he was severely shocked and burned when a cable he was holding made contact with one of the wires of defendant's 34,500-volt overhead subtransmission line which ran along the west side of McKinley Street. The trial of this action resulted in a verdict for plaintiff in the sum of $75,000. Plaintiff entered a required remittitur of $15,000 and defendant has duly appealed from the ensuing $60,000 judgment.

The two-story building mentioned was being constructed on the northwest corner of the intersection by Plez Lewis Construction Company, the general contractor. For many years defendant had maintained a pole line at this point along the west side of McKinley Street. On the top crossarm were three bare copper wires constituting the 34,500-volt circuit. Another crossarm below contained the wires, also uninsulated, of a 7,200-volt circuit. The poles were 105 feet apart. At the low point of the 'sag' the wires of the higher circuit were 32 feet above the ground and those of the 7,200- volt circuit were six feet lower. A barricade had been placed across McKinley at Main and the portion of McKinley Street adjacent to the building site had been used to store building materials.

On the morning in question plaintiff and his foreman, Steve Tourville, were engaged in installing two lintels on the east side of the building. These lintels were about 14 feet long and are described as metal beams or plates that are placed at the top of a window or door opening so as to support the wall above. In doing this work they were using a crane which was mounted on a truck bed and was being operated by Johnny Bay. The crane had a 40-foot boom and there was a 5/8-inch metal cable which ran from a drum on the truck bed over the top of the boom and then dropped vertically to the ground. On the end of the cable was a large metal hook and a short distance above the hook was a 'headache' ball. This ball is a heavy metal cylinder 12 to 14 inches long and 6 inches in diameter. It weighs about 60 pounds and its weight causes the cable to descend when the brake on the drum is released.

There was a metal scaffold along the east side of the building which extended out about five feet. On the morning of the casualty the crane truck was positioned parallel to the side of the building about as near the east wall as the scaffolding would permit. The boom was lowered and used to move the lintels from the street to the area alongside the building. The boom was then raised to a 70-degree angle and was about 40 feet above the ground and from six to eight feet west of the west wire of each of defendant's high-voltage circuits. At this point it was discovered that one of the lintels was bent and would need to be straightened before being installed. They attempted to do so with a hammer but were not successful. Plaintiff then decided to use the 'headache' ball as a hammer and drop it on the lintel in an effort to straighten it. He tried it once and then requested that Johnny give him more slack so that the full force of the ball would strike the lintel. Johnny let out from two to four feet more cable. Steve was holding the lintel and plaintiff had one hand on the hook and the other on the cable. When he struck the second blow a ball of fire came down the cable. Steve was knocked ten feet away and plaintiff fell back on a pile of straw which was ignited by the charge. The movement of the headache ball had caused the slacked cable above to whip about in the air to the extent that it contacted the westerly wires of defendant's nearby high-voltage circuits. In addition to receiving burns from the electricity plaintiff's right leg was severely burned by the straw fire before he could be dragged away and the fire in his clothing extinguished. He was removed by ambulance to the St. Francis Hospital in Washington, Missouri, and three days later was taken to St. John's Hospital in St. Louis. The extent of his injuries will be hereinafter detailed in connection with our consideration of the claim that the judgment is excessive.

Steve Tourville testified that the wires were in plain sight but he did not know that they carried electricity or that they were uninsulated; that he would not have intentionally touched them because he would not purposely touch any wire; that there were no warning signs concerning those wires; that on other projects where he had worked near high-voltage uninsulated wires there had been warning signs such as 'Caution, High Voltage'; that on a few other occasions he had seen a headache ball used in the manner plaintiff was using it.

Johnny Bay testified that he did not know the wires were uninsulated or that they were high-voltage wires; that there were no warning signs and no one had told them that they were high-voltage uninsulated wires; that just as plaintiff hit the lintel the second time he (Johnny) had shouted a warning to 'watch the wires'; that he didn't know why he attempted to warn them because it hadn't entered his mind that the cable might flip into the wires. On cross-examination Johnny stated that the boom could have been lowered to a point below the wires in about two minutes and that the headache ball could have been detached from the cable in about 15 minutes.

Plaintiff testified that he was 38 years old at trial time; that he had seen these wires but didn't know they were uninsulated and didn't think they carried electricity although he wouldn't have touched them deliberately; that he hadn't thought about the cable swaying back and forth in the air; that on practically all other jobs where he had worked near uninsulated high-voltage wires there had been warning signs; that he had worked on this job about five weeks in the early summer of 1957 and two days about a week before the casualty; that it was a common practice to use a headache ball as a hammer.

The deposition of defendant's district engineer, John W. McLaughlin, was read into evidence by plaintiff, and he also testified in person as a witness for defendant. This witness stated that early in 1957 the architects had sent him a sketch of the building in question and had written about the manner of furnishing power for it; that 40-foot poles had been used on the instant line but that defendant had poles in storage in 45, 50, 55, and 60-foot lengths; that defendant did not follow a practice of posting warnings except at substations; that no warnings were given or other precautions taken to guard the lines in this construction area; that a 34,500-volt wire could not be insulated; that four-foot line guards made of fiber are used on high-voltage wires to protect men working on poles; that if line guards were used to cover a 105-foot span it would increase the weight 260 pounds and the wind and vibration would probably break the wire; that in the event of insulation additional poles could have been installed and thus have reduced the weight on the wires; that this 34,500-volt circuit was 32 feet above ground and the minimum requirement of the National Electrical Safety Code was 22 feet; that he had seen a crane working around the building but not in the area of defendant's wires; that he made no inquiry concerning the use that would be made of cranes in constructing the building; that no attempt had been made to erect guards for these lines or to raise the lines by substituting 60-foot poles; that he had passed this building once a week during the construction period and had seen the materials stock-piled in McKinley Street; that if the contractor had so requested defendant would have raised the lines or defendant would have relocated the lines at the expense of the contractor if the contractor had requested that such be done. This witness further testified that the contact of the cable with defendant's circuits had caused a power failure in the area and he had gone to the scene of the casualty shortly after it occurred and had observed burned contact marks on the cable and on the west wires of both the 34,500 and 7,200-volt circuits.

Defendant offered the testimony of Paul Crawford, a registered professional engineer, who stated that he was employed by L. E. Meyers Company in doing the engineering work for the construction of electric transmission lines. He testified that insulated 34,500-volt wires were not in existence and that there was no way to join line guards so as to completely cover a span of 100 feet. Upon cross-examination he stated that a longer crossarm could have been attached to the poles at either end of the 105-foot span and a 'dead' wire affixed to each end of it which would have guarded the live wires and prevented a cable from coming in contact with them.

Defendant also presented the testimony of Mrs. Frank Carter, a shorthand reporter, who stated that she accompanied Mr. Wehmeyer of the Union Electric Company to St. Francis Hospital at Union on October 2, 1957, at which time Mr. Wehmeyer questioned plaintiff concerning the instant occurrence. She read questions and answers from her notes which indicated that plaintiff said he knew the wires were there and that 'they all talked about the hot wires but I didn't know how hot they were,' and that 'there must have been too much slack in that line.' In this connection it should perhaps be stated that when plaintiff was questioned on cross-examination about this interrogation at the hospital the...