Koehler v. Detroit Edison Co.
| Decision Date | 09 March 1970 |
| Docket Number | J,No. 12,12 |
| Parties | Anna KOEHLER, Administratrix of the Estate of Carl Koehler, Deceased, Plaintiff and Appellant, v. DETROIT EDISON COMPANY, a corporation; Leland Beard, individually and d/b/a Beard's Welding and Erection Co., and Robert Pankey, jointly and severally, Defendants and Appellees. PALOMBIT CONSTRUCTION CO., Inc., a corporation, Defendant, and Palombit Construction Co., Inc., Third-Party Plaintiff, v. PRECAST INDUSTRIES, INC., a corporation, Third-Party Defendant. an. Term. |
| Court | Michigan Supreme Court |
George L. Downing, of Kelman, Loria, Downing & Schneider, Detroit, for plaintiff and appellant.
Fischer, Sprague, Franklin & Ford by David G. Barnett and Leon R. Jones, Detroit, for defendant and appellee The Detroit Edison Co.
Feikens, Dice, Sweeney & Sullivan, Detroit, for defendant-appellee Beard.
Earl M. Remer of Zweig, Taback & Remer, Detroit, for plaintiff-appellant Robert Pankey.
Before the Entire Bench, except KELLY, J.
This wrongful death action was brought by the administratrix of the Estate of Carl Koehler. Koehler was a subcontractor on a building job near Memphis, Michigan. On June 27, 1960, he received injuries which resulted in his death.
The building he was working on extended north and south. It was not of a uniform height, the southern part being higher than the northern portion. The roof on the northern portion was estimated to be 22 feet above ground level. Koehler was engaged in unloading and installing precast concrete slabs and T-joists. The slabs and joists were trucked to the building site and then unloaded by a crane. A truck, which was being unloaded, had been parked about 15 feet to the west of the building. A crane, owned by defendant Beard and rented by him to Koehler, was being used at the time to lift the slabs and joists to the roof of the building. The crane was sitting to the south of the truck and was positioned 15 or 20 feet from the building. The crane was mounted on its own truck or rig which was mounted on rubber tires and had a truck cab as well as a crane operator's cab. The crane was equipped with a 60-foot boom and a 20-foot gib which extended to the north from the crane and which could be swung to the east or the west in the unloading operations.
On October 23, 1959, eight months prior to the accident, defendant Detroit Edison had completed construction and energized an electric distribution line to the building site. It consisted of three wires without insulating coating. The line ran in a north and south direction approximately 50 feet to the west of the building. The wires were strung at a height of 30 to 35 feet above ground level.
Koehler was shorthanded in his work force on the day of the accident. He had called the Ironworkers' Hall for help but they did not have anyone available and told him to hire whoever he could get on the job. He hired a couple of carpenters to work with him. The crew was insufficient for Koehler to have men on the truck and on the building. Consequently, he was trying to perform two jobs--first, hooking the cable to the material on the bed of the truck and, second, actually installing the material on the building itself.
Defendant Pankey, the crane operator, testified that on that day Koehler had ridden the sling or wire cable from the truck to the wall or from the ground to the wall and back again to the truck about half a dozen times. Pankey warned him that this was dangerous but Koehler went ahead anyhow. Koehler had also been warned that riding the cable was dangerous by Elbert Shinn, the General Superintendent for Palombit Construction Company, one of the defendants.
Gordon Howcroft, one of the workers on the job, testified that just prior to the accident he was standing with another workman on the roof of the south end or higher portion of the building. Another witness, Harvey Kaltz, was standing with Howcroft. Koehler was on the roof of the lower or north end of the building. Kaltz testified that shortly after 3:00 p.m. he saw Koehler step into the spreader which was at the end of the cable. He described the spreader as being two cables or double cables looped around and fastened into a ring. The cable from the crane had a ball near the end of it and a hook below that. The spreader was looped into the hook.
As Pankey, the crane operator, unloaded the truck, he could not see the concrete slabs after they went over the side of the building. There was an ironworker on the roof to give him his signals. At the time Koehler stepped into the spreader on the rooftop, Pankey could not see him. It was Pankey's testimony that just prior to the accident the ironworker gave him a signal to take the cable up and that, when he did so, Koehler was on the end of it. Koehler gave the signals after he came into view.
Witness Kaltz testified that when the crane operator raised Koehler from the roof to a place where the operator could see him, Koehler gave signals to boom it up or to raise the boom and that this signal continued as he was swinging off of the building. At the same time that Koehler was signalling to raise the boom, the crane was swinging to the north and west of the building. As the boom came around, it was going toward the west.
From this point on until Koehler was injured, there is substantial dispute as to what occurred. Gordon Howcroft testified that he saw Koehler being swung on the cable over near the power lines and that there was a flash or arc of blue light from the east wire of the power line which arced over to Koehler's body at about shoulder height. At that time Koehler's head was above the power line with the rest of his body below it. He said that after the flash or arc occurred, Koehler's body seemed to bounce back and that he straightened up with his hands above his head, and then he appeared to go limp and went into a jackknife position and fell to the ground. Howcroft went down a ladder to the ground, walked to the place where Koehler lay and looked up at the wires. He stated that the east wire was still moving at that time. Howcroft testified that, after he fell, Koehler lay on the ground about midway between the wires and the slab truck which was being unloaded by the crane and that Koehler was facing to the north.
Kaltz said that he observed Koehler swinging toward the wires and signalling to raise the boom up and that, when he was within a couple of feet of the wire, he drew his hands back and seemed to go limp and started to fall toward the ground. Kaltz further stated that as Koehler was falling toward the ground he tipped forward and went face first and fell over a mound of clay. Kaltz went to where he lay. Koehler appeared to be unconscious. Kaltz also stated that at the time Koehler fell, the boom on the crane had gone beyond the truck, that is, to the west of the slab truck and was farther to the west than he had observed it at any other time during the day.
Pankey, the crane operator, testified that when Koehler came into view he noticed Koehler had one foot in the sling and was holding on to the cable by clamping it under his right arm; that as he swung the cable to the west, it appeared to him that Koehler's foot slipped out of the sling; that it looked like Koehler was trying to change position and that he slipped and fell to the ground. Pankey testified that at the time Koehler fell, the boom was 15 feet to the east of the power line, that is, toward the building. It was further a part of Pankey's testimony that the place where Koehler was riding on the cable was about 30 feet from the top of the boom. Pankey stated that he had already swung Koehler beyond the truck before he fell. A deposition by Pankey was admitted at the trial, and in it he made the statement that Koehler landed on the ground about 10 or 15 feet west of the slab truck.
At the conclusion of plaintiff's proofs, in granting motions for directed verdicts, the trial judge found as to all defendants that there was no proof of negligence on their part. The Court made a further finding as follows:
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