Federal Pacific Elec. Co. v. Woodend, 2-85-164-CV

• Decision Date: 01 July 1987
• Docket Number: No. 2-85-164-CV,2-85-164-CV
• Citation: 735 S.W.2d 887
• Parties: FEDERAL PACIFIC ELECTRIC COMPANY, Appellant, v. David Bruce WOODEND and Wayne Henry Hooper, Appellees.
• Court: Texas Court of Appeals

Page 887

735 S.W.2d 887

FEDERAL PACIFIC ELECTRIC COMPANY, Appellant, v. David Bruce WOODEND and Wayne Henry Hooper, Appellees.

No. 2-85-164-CV.

Court of Appeals of Texas,

Fort Worth.

July 1, 1987.

Rehearing Denied Sept. 10, 1987.

Mayor, Day & Caldwell and Roger A. Rider, Houston, for appellant.

McGuire & Levy and Lonnie C. McGuire, Jr., Irving, for appellees.

Before FENDER, C.J., and FARRIS and LATTIMORE, JJ.

OPINION

Howard M. FENDER, Chief Justice.

This is a products liability/negligence/implied warranty case arising out of an electrical explosion at Six Flags Mall in Arlington, Texas. Based upon jury answers to several special issues on three different theories, the trial court rendered judgment in favor of the plaintiffs in excess of $700,000. Appellant, Federal Pacific Electric Company (Federal Pacific or appellant herein), appeals the verdict, denial of a motion for judgment N.O.V. and denial of a motion for new trial in ten points of error. Appellees bring one cross-point seeking prejudgment interest.

We affirm.

Because the sufficiency of the evidence to support the jury's findings has been challenged, we must review the facts of this complex and technical case. Six Flags Mall was opened in 1969. The electrical components in question were manufactured and assembled by appellant. On Friday, October 23, 1979, appellee, David Woodend (Woodend or appellee Woodend herein), and Kenneth Morris (Morris herein), employees of Slocum Electric, arrived at the mall in response to a service call. Brooks Fashion, one of the tenants, was experiencing dim and blinking lights. Morris was the senior electrician of the two and was in charge of the service call.

After speaking with the Brooks manager and Clint Carroll, the mall manager, Morris and Woodend were given access to the outside room containing the electrical distribution panel servicing Brooks. The electricians concluded the lighting problem was caused by a defective phase in the three phase QMQB switch manufactured by appellant. (See Drawing # 1 attached hereto [copied from appellant's brief and included not as evidence but solely to aid the reader].) They did not have a replacement switch with them and promised to return with one the next day.

On Saturday morning, Woodend returned to the mall with appellee Wayne Hooper (Hooper or appellee Hooper herein) as his helper but without Morris. Richard Webb, Woodend's boss, testified Woodend volunteered to replace the switch on Saturday without Morris' supervision. Although Woodend had worked service calls for Slocum Electric for two months prior to the explosion, he had never worked on switching gear. He had worked on switching gear while serving aboard a U.S. Coast Guard vessel but had never seen equipment of the type installed at Six Flags Mall.

The switching gear appellees were attempting to repair was located in an equipment room behind the mall itself. Although appellees cut off the power flowing out of the switch to Brooks, power was still coming into the switch unit and the switch was "energized" or "live." "Load Side" designates the line going out to the user (Brooks). "Line Side" refers to the wiring coming into the switch from the transformer. Woodend testified that, to his knowledge, there was no way to cut power to the line side of the switch except by calling the power company to come out and disconnect one of its transformers. That would have cut power to many stores in the mall, not just Brooks.

The actual switching gear was mounted against one wall of the equipment room. Each store had its own switch housed in a rectangular metal box-like unit. These boxes or "cans" were stacked one on top of another. Inside each box were three large horizontal fuses. Appellees believed that a contact in one of the Brooks fuses was defective. Power from the electric company was transformed down into 480 volts before being fed into the switches by means of three vertical "buss bars." The "buss bars" in question were two inches wide by one quarter inch thick. The power lines were attached to the top of the buss bars, thus energizing the bars. Each switch is bolted onto each buss bar, making contact in one spot on each of the three bars. (See Drawing # 1.) The top phase of a switch was connected to the far left buss bar. This was known as the "A phase." The "B phase" was bolted to the middle buss bar, while the "C phase" was bolted to the far right buss bar. Each buss bar had threaded holes drilled down the center. The A phase then ran horizontally over to the right side of the switch where the right end of the buss strap was bolted to the switch. The B strap was, of course, shorter and the C strap was shortest of all. The can does not touch the buss bars themselves. The can only touches the buss straps on the right end of the buss straps. (Points A sub3 , B sub3 and C sub3 on Drawing # 1.) There was some dispute as to whether these buss straps and bars were pure aluminum or an aluminum alloy. The buss bars are mounted on a framework against one wall reaching almost from floor to ceiling. Because electricity flows into each bar, all three are energized. The wiring coming out of the right side of each can then leads to the particular store. Each switch has three large fuses, usually of 100 or 200 amps each.

The left end of the buss strap, bent at each end, is bolted to the left buss bar. (Points A sub5 , B sub5 and C sub5 on Drawing # 1.) At the far left end of the buss strap is a detent or boss stamped into the strap. Ideally, when the strap is screwed down properly against the buss bar, the boss protrudes beyond the left side of the buss bar, parallel to the side of the buss bar. This detent rests against the side of the vertical buss bar and prevents the horizontal strap from rotating clockwise.

The buss strap is bent outward away from the surface of the buss bar, but still parallel to the face of the buss bar. At the far right end of the strap, it has two more 90 degree bends that raise the right end even further from the buss bar, while leaving the strap parallel to the buss bar. There is another hole in the right end of the strap. It is by means of a screw there that the buss strap is bolted to the copper lugs on the right side of the switch. It was disputed whether the straps were to be mounted parallel to each other and whether they were to be mounted one or two holes apart on the buss bars.

It was Woodend's intention to unbolt and disconnect the Brooks can, pull it away from the buss bars, and install the new can he had picked up from appellant. The buss straps must be disconnected from contact with the can on the right end of the straps, while remaining attached to the buss bars by their left hand screws. Woodend unscrewed the A phase and B phase screws. (Screws A, and B, on Drawing # 1.) Hooper was kneeling down behind Woodend taking the new switch out of the box. Woodend recalls removing the B phase lug screw and setting the screw down. He reached into the can to remove the C phase screw when the explosion occurred. (Screw C, on Drawing # 1.) Both men were burned by the hot gases formed by melted and vaporized metal parts, Woodend much more so than Hooper. The two men managed to get outside the door to a parking lot area where mall employees quickly came to their aid and summoned help. Exactly what caused the explosion was strongly disputed by the parties and lies at the heart of this case.

At the risk of over simplifying a highly complex matter, we will attempt to reduce the opposing theories to simple terms. Appellees, who were plaintiffs below, contend that the energized A phase buss strap rotated down in a clockwise motion until it touched the energized B phase strap, causing a "phase to phase" arc or short since electricity was still flowing through the buss bars and straps. Appellant denies this occurred and instead argues the evidence suggests a "phase to ground" short, most likely caused by Woodend touching an energized portion of the can such as the C phase screw with his screwdriver, while touching a grounded portion of the can--such as the hasp or the side of the can. (Hasp is point D on Drawing # 1.) Appellant contends Woodend caused such a short by dropping the screwdriver or otherwise losing his grasp of it.

Of course the switching unit was badly damaged by the intense heat. The remains of the Brooks can, the can directly above the Brooks can and the can directly below the Brooks can were shown to the jury. Both sides also used models and mock-ups to demonstrate their theories to the jury. We have many of the original exhibits before us and have benefited greatly from being able to examine them while reviewing the lengthy and complex testimony. Unfortunately, for both parties, large portions of their expert testimony was incoherent and meaningless not through any fault of the court reporter but because of imprecise word usage by the attorneys and witnesses. Exhibits were referred to as "this piece here" or "that one" rather than by name or exhibit number. The effects of electrical current, arcing, high temperature and other such subjects were similarly explained in vague references such as:

Q. See this place right here and this place right down here?

A. Yes.

Q. Wouldn't you agree that something has been broke off of there?

....

or:

Q. Could you do it down below here just as well?

A. Oh, I could do it on these two buss bars and do the same thing. Do it together on these, and so forth. And if I do it over here, like this, and this, of course, touching that, just what I did before where I could light that light. Put it on here.

Q. That's just a phase to ground?

A. That's a phase to ground.

We recognize that at trial attorneys are primarily occupied with persuading the trier of fact. However, it is also essential that attorneys preserve the testimony of their witness in the event of appellate review. Counsel must recognize when their witnesses are giving non-verbal...