Hardy v. United States

• Decision Date: 12 October 1960
• Docket Number: Civ. A. No. AC/101.
• Citation: 187 F. Supp. 756
• Court: U.S. District Court — District of South Carolina
• Parties: Mrs. Mary HARDY, as Administratrix of the Estate of Coker Hardy, deceased, Plaintiff, v. UNITED STATES of America, Defendant.

187 F. Supp. 756

Mrs. Mary HARDY, as Administratrix of the Estate of Coker Hardy, deceased, Plaintiff, v. UNITED STATES of America, Defendant.

Civ. A. No. AC/101.

United States District Court E. D. South Carolina, Columbia Division.

October 12, 1960.

COPYRIGHT MATERIAL OMITTED

Edens, Hammer & Glenn, Columbia, S. C., for plaintiff.

N. Welch Morrisette, Jr., U. S. Atty., George E. Lewis, Asst. U. S. Atty., Columbia, S. C., for defendant.

WYCHE, District Judge (Sitting by Designation).

This action was brought by the plaintiff, Mrs. Mary Hardy, as Administratrix of the Estate of Coker Hardy, deceased, against the United States of America under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671 and 2674 to recover damages for the actionable negligence of employees of the Soil Conservation Service of the United States Department of Agriculture, acting within the scope of their employment in preparing plans and specifications, designing, staking out, surveying and supervising, and performing other activities pertaining to the construction of a dam in Clarendon County, which caused plaintiff's intestate, Coker Hardy, to receive an electric shock.

Workmen's Compensation benefits under the South Carolina Workmen's Compensation Act, Code 1952, § 72-1 et seq., have been paid to the widow of the deceased by the Central Surety and Insurance Corporation as carrier for the employer of plaintiff's intestate. The Central Surety and Insurance Corporation under the South Carolina Workmen's Compensation Act has been subrogated to the claim of the plaintiff against the defendant to the extent of the Workmen's Compensation benefits paid by the Central Surety and Insurance Corporation; and the said Central Surety and Insurance Corporation, as subrogee, has consented on the record to the institution and maintenance of this suit which is brought for its benefit to the extent of the Workmen's Compensation benefits paid by it.

The occurrence happened while the plaintiff's intestate, assisting a government employee in making a survey at the specific instance and request of the government employee, was carrying and using under the supervision and direction of the government employee a surveyor's rod furnished by the government, through which rod a stream of electricity was conducted from an overhead line, causing severe burns and injuries to plaintiff's intestate resulting in his death.

The complaint contains two counts; one a cause of action for death which was brought for the benefit of the surviving widow and five children of plaintiff's intestate, and the other a cause of action for conscious pain and suffering, brought for the benefit of the estate.

The case was tried before me without a jury, and in compliance with Rule 52(a) of the Federal Rules of Civil Procedure, 28 U.S.C.A., I find the facts specially and state my conclusions of law thereon, in the above case, as follows:

Findings of Fact

1. During the early part of 1956 one D. T. Epps made application to the Soil Conservation Service of the United States Government to do land clearing and pond building work under the supervision of the Soil Conservation Service.

2. Thereafter, on or about May 14, 1956, D. T. Epps and plaintiff's intestate were engaged to perform work of hauling and piling dirt for the construction of a dam with a 12 foot roadway thereon on the farm land of Berry Brothers in Clarendon County, South Carolina, under the supervision of the Soil Conservation Service in accordance with the plans and specifications prepared by it.

3. This dam was approved by the Soil Conservation Service for construction under the Soil Conservation program whereby the government performs the engineering services on dams which includes selecting of sites, designing, surveying, staking, preparing plans and specifications, supervising of the installation, and checking the work to insure compliance with government plans and specifications. Pursuant to the approval by the government, it undertook to and did engage in the foregoing activities pertaining to the construction of the dam.

4. Prior to the commencement of work by plaintiff's intestate and D. T. Epps, the Soil Conservation Service sent its employees experienced in engineering practices to the site of the proposed dam to collect engineering data, in order to determine, among other things, how high the dam could be built.

5. When the Soil Conservation Service employees went to the site of the proposed dam to collect the necessary engineering data, there was present and observed by them an overhead power line on the farm land, 27 feet above the surface, running diagonally across the portion of the land where the dam with the 12 foot roadway was to be built.

6. After the government employees collected the engineering data on the site they submitted a written report of this data to the office of the Soil Conservation Service to be used by it for designing and preparing the plans and specifications. This report, however, failed to include the presence of the aforementioned overhead power line which was seen by the employees who collected the engineering data.

7. The Soil Conservation Service knew of the danger of locating a dam under a power line and through its employees knew of the presence of the power line over the land where the dam was to be built. It also knew that where a dam is to be built on land which is under a power line precautions should be taken for the safety of persons working on the dam. Nevertheless, the government failed to take any precautions for the safety of those working on the dam, particularly D. T. Epps and plaintiff's intestate; and the failure of the government to take precautions for the safety of persons on the dam was attributable to the failure and omission of the employees of the Soil Conservation Service who collected engineering data on the site to include in their report submitted to the office of the Soil Conservation Service any information concerning the presence of the overhead power line.

8. Pursuant to the information received by the office of the Soil Conservation Service from its employees who collected the engineering data on the site, the dam was designed and plans and specifications were prepared by the engineers of Soil Conservation Service. The specifications provided that the dam with the roadway thereon be constructed to reach a height of 13.8 feet, thus causing a reduction of the vertical clearance to only 13 feet between the roadway of the dam and the overhead power line, whereas the minimum safety clearance is 18 feet according to the Code of Laws for South Carolina, 1952, Vol. 7, page 819. This resulted in the creation of a hazardous and dangerous condition to those working on the dam when nearing completion.

9. After the dam was designed and the plans and specifications were prepared, the employees of the Soil Conservation Service staked out the dam; and on or about May 14, 1956, the plaintiff's intestate and D. T. Epps, commenced the work of hauling and filling dirt for the dam under the supervision of the Soil Conservation Service and in accordance with its plans and specifications.

10. That on May 21, 1956, when the dam was nearing completion, D. T. Epps requested the Soil Conservation Service to check the elevation of the dam to determine whether the height as required by the government had been reached.

11. This check required survey work to be performed by the employees of the Soil Conservation Service and although such survey required two employees of the government to perform same—one to hold and level the surveyor's rod and the other to sight the level with an instrument on a tripod—the Soil Conservation Service sent only one of its employees to the dam to perform this work because the other employee who should have accompanied him went on leave that day.

12. When the government employee, experienced in engineering, reached the dam D. T. Epps and plaintiff's intestate who were engaged in their work were requested by the government employee to help him in the performance of the government work of making a survey to check the height of the dam. The plaintiff's intestate and D. T. Epps thereupon laid aside the work they were doing and the government employee then set up a tripod and sight instrument and furnished and handed to plaintiff's intestate or D. T. Epps a surveyor's rod which was 11½ feet in length to be used in making the survey.

13. Plaintiff's intestate then proceeded to carry and use the surveyor's rod under the supervision and direction of the government employee who was using the sight instrument, and after being directed to proceed from stake to stake on the roadway of the dam which was then only 14 feet from the overhead power line, he was directed to proceed to take a level on or at a stake located directly under the overhead power line, and just as he was about to place the rod on the stake, the road either touched or came close to the overhead wire causing a stream of electricity to arc or run directly into the rod which conducted it through to plaintiff's intestate and the ground nearby where D. T. Epps was standing, as the result of which the plaintiff's intestate sustained severe burns and injuries resulting in his death.

14. Plaintiff's intestate had no...