Knoxville Power & Light Co. v. Barnes

• Decision Date: 21 November 1927
• Citation: 299 S.W. 772,156 Tenn. 184
• Parties: KNOXVILLE POWER & LIGHT CO. v. BARNES.
• Court: Tennessee Supreme Court

299 S.W. 772

156 Tenn. 184

KNOXVILLE POWER & LIGHT CO. v. BARNES.

Supreme Court of Tennessee.

November 21, 1927

Appeal from Circuit Court, Knox County; A. C. Grimm, Judge.

Proceeding under the Workmen's Compensation Act by W. F. Barnes against the Knoxville Power & Light Company. From a decree granting an award, defendant appeals. Affirmed.

Chas H. Smith, of Knoxville, for plaintiff in error.

S. E N. Moore and Felix O. Cox, both of Knoxville, and W. P Monroe, of Maynardville, for defendant in error.

COOK J.

Knoxville Power & Light Company, the employer, appealed from an award to W. F. Barnes, the employee, under the Workmen's Compensation Act. Chapter 123, Acts of 1919. Through assignments of error it is urged:

First. That the employee's injury resulted from willful neglect or refusal to use safety appliances furnished by the employer for his protection, and recovery should be denied under section 10 of the act.

Second. If awarded, the employee is not entitled to compensation for loss of use of the left arm, and for loss of use of the right hand, the award being precluded by section 28, subsection (c), which provides:

"Where an employee sustains concurrent injuries resulting in concurrent disabilities, he shall receive compensation only for the injury which produced the longest period of disability."

B. L. Beeler and the petitioner were engaged in transferring wires that carried 2,300 volts of electricity, from upper to lower arms on the poles. Beeler was a first-class lineman and Barnes was a second-class lineman. It was the custom of one lineman to stand watch, while the other worked upon the poles. Beeler, an experienced lineman, went upon the poles and removed the wires, without rubber gloves, or other safety devices, while Barnes stood on the ground and watched. Referring to the work, Barnes testified:

"A. Beeler had worked them all the time with his naked hands without gloves, and I asked him if he needed gloves, and he said, 'No.'

Q. Did you know they were transferring 2,300-volt wires?

A. I didn't know they were hot; he told me Mr. Scarlett had killed three of these wires, and we were only working on three, and he had been working without gloves, and I assumed he was talking about these same three wires. * * *

Q. You discussed with Beeler whether or not it was proper or necessary for your safety to use rubber gloves while working on these wires?

A. Yes, sir.

Q. And Mr. Beeler told you that Mr. Scarlett had killed three of the wires?

A. Yes, sir."

Beeler testified:

"Q. Did you and Mr. Barnes discuss whether you had better wear gloves that morning?

A. I do not recall discussing about gloves; something was said about we had better get some rubber goods from the truck.

Q. Who said that?

A. Mr. Barnes.

Q. What took place?

A. I remember working without rubber gloves, and maybe said the truck was around the corner, and I said, 'We will work this pole and then send and get the rubber goods.'

Q. When did Mr. Barnes suggest you had better send and get rubber goods?

A. On the same pole he got burned on.

Q. After you suggested the truck was around the corner, and you would get them the next pole, what did he say?

A. He went to work.

Q. Had you told him it was not necessary to use gloves?

A. I don't know as I did. I don't make a practice of telling men not to wear gloves.

Q. Are you the men's boss?

A. No, sir.

Q. Were you in the habit of telling them what to do?

A. I was head lineman.

Q. What authority did you have over the other men or over Barnes?

A. I was supposed to be a first-class lineman; he left me there to do the work, and see that it was done right.

Q. You do not mean you were a better lineman than somebody else?

A. Well, it means first-class. A first-class lineman knows his business all right.

Q. How did it happen that Barnes was changing the wires on this pole, instead of you?

A. I had worked all of the poles up to there, and he suggested he would do the work on that pole.

Q. You went to Mr. Barnes that morning, after Mr. Burris instructed you to remove these wires, and told him what to do?

A. Yes, sir.

Q. You had been told, before you went down there, that these wires--some wires--had been killed.

A. Yes, sir; we all knew."

Barnes testified that Beeler assigned him to his duty that day of transferring the wires, and while Beeler was on the pole he said Mr. Scarlett had killed three of the wires; that they were only handling three wires, and when he went upon the pole he assumed that the wires that Beeler and he were working on were dead; that is, carried no current.

Upon review, the most favorable view of the evidence in support of the petitioner's claim must be accepted. If there is material evidence to support the finding of the trial judge, his conclusion upon the facts is final. Milne v. Sanders, 143 Tenn. 603, 228 S.W. 702; Vester Gas Range Co. v. Leonard, 148 Tenn. 672, 257 S.W. 395.

The evidence referred to sustains the conclusion of the trial judge that Barnes' failure to observe the rule was not willful, amounting to misconduct suggesting deliberation and intentional wrongdoing. The evidence referred to, with other evidence in the record not quoted, sustains the conclusion that Barnes omitted the use of the rubber gloves because he supposed, from Beeler's conduct and statements, that the three wires they were transferring had been killed and were not dangerous. The evidence does not suggest that Barnes acted upon his own judgment and in willful disregard of the rules.

"* * * According to the great weight of authority, 'willful failure' to observe a rule or use a safety appliance is not a mere voluntary failure. Otherwise contributory negligence would defeat a recovery under a compensation statute. Willful misconduct means something more than negligence. It carries the idea of deliberation and intentional wrongdoing." N., C. & St. L. Ry. v. Coleman, 151 Tenn. 448, 269 S.W. 920.

Upon the other proposition the trial judge found from the evidence that petitioner sustained injuries arising out of and in the course of his employment, resulting in temporary total disability for 8 weeks, compensable at $12 a week, and that the medical bill was $60. No objection is made to these items. Objection is to the award of $12 a week for 73 weeks determined by subtracting the 8 weeks covering temporary total disability from the maximum period of 200 weeks, the time allowed for loss of use of an arm, and subtracting the 8 weeks from the maximum period of 150 weeks allowed for loss of use of hand, and finding the proportion that 20 per cent. for partial loss of use of an arm, and 25 per cent. for partial loss of use of a hand, bears to the corresponding period...