Jacobs v. Frank Adams Electric Co.

• Decision Date: 10 November 1936
• Docket Number: No. 23833.,23833.
• Citation: 97 S.W.2d 849
• Parties: JACOBS v. FRANK ADAMS ELECTRIC CO.
• Court: Missouri Court of Appeals

97 S.W.2d 849

JACOBS v. FRANK ADAMS ELECTRIC CO.

No. 23833.

St. Louis Court of Appeals. Missouri.

November 10, 1936.

Rehearing Denied November 24, 1936.

Appeal from St. Louis Circuit Court; Clyde C. Beck, Judge.

"Not to be published in State Report."

Action by Frank W. Jacobs against the Frank Adams Electric Company. From a judgment for plaintiff, defendant appeals.

Affirmed.

Eilers & Schaumberg, G. Wm. Senn, and Noel F. Delporte, all of St. Louis, for appellant.

Oscar Habenicht, Foristel, Mudd, Blair & Habenicht, and Harry S. Rooks, all of St. Louis, for respondent.

BENNICK, Commissioner.

In its broadest sense, this is an action for damages for personal injuries alleged to have been sustained by plaintiff as the proximate consequence of the negligence of defendant. More specifically, it is an action wherein plaintiff, who was injured while engaged in the installation of an electric panel board which had been manufactured by defendant, seeks to hold defendant to a liability for its negligence in the construction of such device or appliance, which was of a character not inherently dangerous, but dangerous only by reason of a defect therein. Plaintiff, incidentally, had himself had no contractual relations with defendant, but was injured while in the process of completing the installation of the panel board upon the premises of a third party where defendant had delivered the same upon an order from a jobber in electrical supplies.

Upon a trial of the case, a verdict of nine jurors was returned in favor of plaintiff, and against defendant, in the sum of $5,000; and from the judgment rendered in conformity therewith, defendant's appeal to this court has followed in the usual course.

Plaintiff is Frank W. Jacobs, a journeyman electrician and master mechanic in the employ of one Adolph Fremder, who does business as the Fremder Electric Company. Defendant is the Frank Adams Electric Company, a corporation engaged in the manufacture of certain types of electrical devices and equipment, including electric panel boards, which are appliances comprehending in their entirety the wires, terminals, switches, fuses, meters, and the like, which are essential for the reception of the in-coming electrical current and for the subsequent distribution thereof to the different portions of the premises to be served.

It seems that the Fremder Electric Company had contracted with the Rindskopf Undertaking Company for the installation of certain electrical equipment in its mortuary located at 5214 Delmar boulevard in the city of St. Louis, and had assigned plaintiff to the job as foreman. The panel board involved in this case was one of the electrical devices to be installed. As we have already pointed out, it had been manufactured by defendant, which had delivered it upon the premises completely wired and assembled and ready for installation and use. As a matter of fact, upon its delivery it was receipted for by plaintiff himself, presumably by virtue of his capacity as foreman in charge of the operations on the job.

The panel board was to be installed in the wall of a small room or closet located at the rear of the mortuary. Among its principal features were two remote control switches, designed to control in part the distribution of electric current from such board and to be actuated in unison as a pair. Such control or operation was to be accomplished by the use of two auxiliary wall switches, one of which was located in the wall immediately to the side of the panel board, and the other at the front or main entrance of the building, but from either of which it was possible to control the cove lighting in the chapel.

Even defendant's own evidence conceded the fact that plaintiff and his helper had installed the panel board properly, so that the mishap that occurred with it was not to be attributed to any improper connections that plaintiff might have made.

To complete the job of putting the electrical equipment of the mortuary in order it was necessary for plaintiff to screw lamps or light globes in the sockets placed throughout the cove at points from 18 to 20 feet above the floor. In order to reach the sockets he had to go up on an extension ladder, and because of the fact that even in a shipment of new globes there are often certain ones found which do not burn, it was expedient for him to first turn on the current throughout the cove so that as soon as a globe was tightly screwed in the socket he could know at once whether it would light up or not.

As plaintiff prepared to energize the circuit in the cove, he took a position in front of the panel board at a point some 12 inches out from it and pressed the switch which was designed to distribute the current to the desired locality. The response was a loud explosion, and a flash from the board which extended out and temporarily blinded him, producing the injury to his eyes for which he seeks to recover damages in this action.

Plaintiff's evidence disclosed that the trouble came from a short circuit which resulted from a defective insulation around the rivets that held the contact carrier to the frame of the switch, thus permitting the current to escape from the carrier into the frame itself, and thence, in the process of taking the shortest route to complete its circuit, to run through the metallic parts connecting the frame together.

As soon as plaintiff had recovered his vision, he called defendant's office over the telephone and advised it of what had occurred. The next day defendant sent out two of its men, one of whom was an electrical engineer, to make an inspection of the board, following which the engineer advised plaintiff that the trouble "was due to improper insulation of the carrier." He removed the burned contact arms from the switch and took them away with him for repair or replacement, and on the following day a service man was sent out by defendant to reinstall contact arms and put the panel board in order so that it thenceforth functioned perfectly when operated just as plaintiff had endeavored to operate it on the day before.

In the pleading and submission of his case, plaintiff went upon the theory that defendant had been guilty of actionable negligence in having failed to properly insulate the parts of its panel board and in having delivered the same in that defective condition to be installed in the mortuary, the idea being that with parts of the panel improperly insulated, the same was rendered dangerous and not reasonably safe and likely to cause injury to a person who, while installing the panel, might attempt to use the same for the purposes for which it was intended to be used.

In its answer, after admitting that it had provided the panel board for installation in the premises in question, defendant denied generally the other allegations in plaintiff's petition, and then alleged that if plaintiff was injured, it was the result of his own negligence and of that of his fellow employees in the performance of the work of installing and testing the electrical equipment, and that plaintiff had assumed the risk of his injury, the risk having been one incident to his employment.

The reply filed by plaintiff was in the conventional form.

Defendant's chief insistence is that plaintiff made no case for the jury,...