Lowes v. Union Elec. Co.
| Decision Date | 14 June 1966 |
| Docket Number | No. 32235,32235 |
| Citation | 405 S.W.2d 506 |
| Parties | Erwin L. LOWES and Mrs. Erwin L. Lowes, His Wife, Plaintiffs-Respondents, v. UNION ELECTRIC COMPANY, a Corporation, Defendant-Appellant. |
| Court | Missouri Court of Appeals |
William H. Ferrell, Keefe, Schlafly, Griesedieck & Ferrell, St. Louis, J. W. Thurman, Thurman, Nixon, Smith & Howald, Hillsboro, for appellant.
Earl R. Blackwell, Hillsboro, for respondents.
CLEMENS, Commissioner.
This appeal challenges the sufficiency of plaintiffs' evidence to make a submissible case. The plaintiffs, husband and wife, had spent four years building a new home. When almost completed, it was destroyed by a fire which they attributed to defendant's negligence. Plaintiffs pleaded and submitted their case on the dual theory that the defendant had negligently maintained its wires and the attachment thereof to plaintiffs' house and had negligently maintained a defective transformer. The defendant stood on its motion for a directed verdict. Plaintiffs got a $15,000 verdict and judgment, from which defendant appeals. The core of the controversy is plaintiffs' contention that the fire was caused by a defect in defendant's electrical equipment.
In reviewing the sufficiency of plaintiffs' evidence we follow the principles that they are entitled to all reasonable inferences arising from the circumstances shown, that the precise injury complained of need not have been foreseen if the injury was the natural and probable consequence of an act or omission of the defendant, and that plaintiffs are bound by the uncontradicted testimony of their own witnesses. Boyd v. Terminal R. Ass'n, Mo., 289 S.W.2d 33(1, 3), 59 A.L.R.2d 1222; Klotsch v. P. F. Collier & Son Corp., 349 Mo. 40 (banc), 159 S.W.2d 589(7).
We will describe plaintiffs' house and the parties' electrical facilities as they were before the fire, during the fire, and after the fire.
Before the Fire. The plaintiffs' three-bedroom, frame house was on a one-acre lot in a large tract subdivision. Mr. Lowes had built and wired the house himself; it was completed except for hanging the interior doors and the door to the basement garage. The house faced east and sat back from the road about a hundred feet. Under the northeast corner of the house there was a basement garage, its entrance facing the roadway. The basement wall on the north and east sides of the dwelling was made of concrete blocks, with an entry way into the garage. Just above the basement wall, the framework of the house extended one foot beyond the concrete wall and the underside of this overhang was lined with plywood. Along the front of the house, just below this overhang, Mr. Lowes had put up some temporary scaffolding so he could reach high enough to apply asbestos siding to the front of the house. Thus, the scaffolding rested against the basement wall and extended upward from the ground to the top of the basement wall.
At this northeast corner of the house, the defendant's power supply line joined the plaintiffs electrical system. Mr. Lowes had used power tools and a radio inside the house, and defendant had been furnishing electricity to the house for several months. The defendant's equipment consisted of a pole, a transformer, a three-wire power line, a hanger to attach the power line to the house, and three clip fasteners to attach defendant's power line to the wires of plaintiffs' distribution system. Plaintiffs' equipment, insofar as we are here concerned, consisted of a three-strand wire running through a metal conduit pipe fastened to the side of the house. To understand the parties' theories of the cause of the fire, we must describe the equipment in detail, beginning at defendant's pole and moving toward the interior of the house.
The defendant's pole was near the roadway, 104 feet from plaintiffs' house. Atop the pole was defendant's transformer. There are differences in transformers regarding cut-off devices to stop the flow of electricity from the transformer in the event of a short circuit. Some have circuit breakers and some have fuses; other transformers are purposely designed without any type of automatic cut-off device. The record does not disclose which type of transformer this was.
From defendant's transformer its power line extended under a tree in plaintiffs' front yard to a point under the eaves at the northeast corner of their house. This power line is called a triplex wire, consisting of two live, insulated wires braided around a neutral, uninsulated, weight-bearing wire. The triplex wire was suspended from plaintiffs' house by a foot-long hanger, through which its neutral strand passed. At one end of the hanger was a porcelain knob, attached to the house. At the other end of the hanger was an aluminum clamp, consisting of a base and a compression slide. The neutral strand of the triplex wire--but not the energized strands--ran through this clamp and was held in place by pressure exerted between the base and the movable compression slide. Hence, the weight and tension of defendant's power line was supported by its pole at one end and by its hanger on plaintiffs' house at the other end. Four feet beyond defendant's hanger was the upper end of plaintiffs' conduit, a metal pipe attached to the side of the house. The defendant's triplex wire extended two or three feet beyond its hanger; plaintiffs' three wires extended two or three feet beyond the top of the conduit. The two sets of wires looped toward each other, and midway in this loop each of the three strands of defendant's triplex wire was attached by a clip fastener to each of the three similar strands of plaintiffs' wiring system. At the plaintiffs' end of this loop, plaintiffs' three strands of wire entered their conduit, extended downward through the conduit and followed a bend of the conduit through the basement wall, where the two live strands were attached to plaintiffs' fuse box inside the garage. These were the physical elements that existed before the fire.
The Fire. The day of the fire was warm, windy and dry. There were 'a lot of leaves' on the ground around plaintiffs' house. About 6 p.m., several neighbors noticed a fire at plaintiffs' house. Three of them testified: When they arrived at the scene, the whole inside of the house was ablaze and smoke, flames, and pieces of burning wood were coming out of bursted windows and doors. The fire was burning most intensely at the northeast corner of the house. This northeast corner of the house had 'fallen off,' the exterior wiring had been severed, and the burnt end of defendant's triplex wire, still energized and flashing, was lying somewhere in the yard amid burning leaves. The defendant's transformer was buzzing and showing a red signal light, until defendant's lineman arrived, climbed the pole, and disconnected the transformer. No witness testified about the condition of plaintiffs' electrical equipment during the fire, nor when or whether the plaintiffs' scaffolding burned.
After the Fire. Other material evidence concerned the cause and effect of short circuits, the mechanical functions of the electrical equipment, and its condition after the fire. Mr. Lowes arrived at the house two hours after the fire had started. Then or later, he raked through the burnt debris and retrieved several pieces of electrical equipment. Mr. Lowes identified them at the trial and they were examined by plaintiffs' expert witness, Arthur Patridge, an electrician.
Mr. Patridge first testified in general terms about the cause and effect of short circuits in transmission lines: When a bare live wire comes in contact with another bare live wire or with any grounded conductor, intense heat is created at the point of contact, sufficient to sear the metal and to burn insulation from the wire. When this occurs in a triplex transmission wire, the electricity will no longer pass that point. Instead, the electricity moves backward toward the source until it reaches a point of tension in the wire; heat increases there, the insulation burns off, and another short circuit occurs. After the first short circuit occurs, there will be a series of short circuits moving backward along the transmission line toward the transformer.
Mr. Patridge examined and gave opinions about the various pieces of equipment plaintiff had retrieved from the debris. The severed part of defendant's triplex wire, which had extended from the transformer to the house, had several places where the insulation had burned off, indicating a series of short circuits moving backward toward the transformer. As mentioned earlier, the defendant's triplex wire had been suspended from the house by defendant's hanger, the neutral strand having been held in its aluminum clamp by pressure exerted between the base and the movable compression slide. After the fire, Mr. Lowes had found the movable compression slide deep in the debris and the rest of the hanger atop the debris. The movable compression slide was partly melted. Mr. Patridge said the damage to the slide was probably caused by a short circuit, but added that it was 'either an electrical burn or it is a burn from a very, very high temperature.' By contrast, we have examined the base of the clamp, against which the compression slide had exerted pressure, and find no sign of either friction or burning. Mr. Patridge examined the plaintiffs' conduit pipe that had come loose from the side of the house. It bore drippings of melted roofing tar running from its base toward its top, indicating that the conduit had come loose from the house and was pointed downward before the house collapsed. Mr. Patridge also examined plaintiffs' Exhibit, I, which Mr. Lowes had...
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