Heard v. Arkansas Power & Light Co.

• Decision Date: 10 February 1941
• Docket Number: 4-6199
• Citation: 147 S.W.2d 362,201 Ark. 915
• Parties: HEARD v. ARKANSAS POWER & LIGHT COMPANY
• Court: Arkansas Supreme Court

147 S.W.2d 362

201 Ark. 915

HEARD v. ARKANSAS POWER & LIGHT COMPANY

4-6199

Supreme Court of Arkansas

February 10, 1941

Appeal from Pope Circuit Court; Audrey Strait, Judge; affirmed.

Judgment affirmed.

Wiley Bean, Bob Bailey, Jr., and Bob Bailey, Sr., for appellant.

House Moses & Holmes, Eugene R. Warren, N. R. Rusk and J. M Smallwood, for appellee.

MCHANEY J. HUMPHREYS, J., dissents.

OPINION

MCHANEY, J.

Appellant, a resident of Little Rock, brought this action at Russellville, in the Pope circuit court, to recover damages for personal injuries which he alleged he sustained on December 30, 1938, while an employe of appellee, as a cable splicer helper. Appellee is engaged in the distribution of electricity in the City of Little Rock, Russellville and other places. In Little Rock, in the downtown district, it owns, operates and maintains an underground distribution system, consisting of duct lines, cables, switches, conduits, manholes, transformer vaults, substations, and other equipment in and through which manholes and vaults the cables, transformers and switches are installed for the purpose of supplying electricity to its customers in such downtown area. One of appellee's lines is located in the alley west of and parallel to Main street, and runs from Markham south to west Eighth street. At approximately each 150 feet along said line, there is a concrete room known as a manhole which is entered through a surface opening and is kept closed, except when occupied, by a manhole cover. There are also located at certain places along and near this line concrete rooms known as transformer vaults, which are much larger than the manholes, the one here involved being 10x18 feet, 8 feet deep. There is one such manhole on the south side of west Fourth street, where the alley intersects said street, and approximately 20 feet west of it there is located a transformer vault housing three transformers for standby service. The only connection between this manhole and vault is a duct line encased in concrete which contains eight round fiber tubes, each about 3 1/2 inches in diameter, through which electric cables pass, and cables were in six of the eight tubes, leaving two vacant. It was in this manhole that an explosion and fire occurred on December 30, 1938, at about 11 o'clock a. m., at a time when appellant and three other employes were in the transformer vault some 20 feet away, and it is alleged that when the explosion occurred in the manhole the lights in the vault went out and it was filled with smoke, gas fumes and gases which he was compelled to inhale for a few minutes, until he got out by means of a ladder to an exit to which he was directed by others on the outside, he being the next to the last of those with him to get out. He alleged the cause of the explosion was unknown to him, but that "the explosion would not have happened except for the negligence of the defendant (appellee), its servants, agents and employes, or was caused by something in connection with the equipment or operation of said electrical system in or about said vault, manhole or conduits, wires, substation and switches or other equipment over which defendant had entire control." He further alleged that he immediately fell to the floor, in accordance with appellee's safety instructions, to avoid as far as possible the breathing of poisonous gases, smoke and fumes, and that it was negligent in not equipping said vault with circulating fans, which, together with his act in falling to the floor, would have prevented the injuries he alleges he sustained. He further alleged that "he does not know the exact cause of said explosion and therefore is unable to allege any particular cause thereof, but that all the facts of this explosion are well known to the defendant, its servants, agents and employes." Quotations from appellant's abstract. An amendment to this complaint was filed charging ten specific acts of negligence to appellee, as follows: 1. failure to furnish a safe place to work; 2. failure to provide approved testing equipment to discover natural gas in the vault; 3. in carrying too heavy a load of electricity through its equipment; 4. in using old and dilapidated wires, switches and conduits; 5. in not keeping its wires properly insulated; 6. in permitting its wires to come in too close contact; 7. in overloading the wires causing them to get too hot; 8. in not keeping its wires, etc., so as not to cause a short circuit; 9. in not clearing the gas from the vault and manhole prior to sending him in to work; and 10. in telling him and others to go into said vault.

The answer was a general denial and a plea of assumed risk. Trial resulted in an instructed verdict for appellee, on which judgment was entered, and from which comes this appeal.

Appellant's principal reliance for a reversal of the judgment against him is based upon the doctrine of res ipsa loquitur which means "the thing speaks for itself." For the purpose of this opinion only, we assume that the doctrine is applicable to the facts in this case. In Chiles v. Ft. Smith Commission Co., 139 Ark. 489, 216 S.W. 11, which was a case in which a demurrer to the complaint was sustained and which is our leading case on the subject, the rule as declared in Shearman and Redfield on Negligence (§ 59) is quoted with approval as follows: "When a thing which causes injury is shown to be under the management of the defendant, and the accident is such as in the ordinary course of things does not happen if...