MONSANTO CHEMICAL COMPANY v. Payne

• Decision Date: 23 February 1966
• Docket Number: No. 21900.,21900.
• Citation: 354 F.2d 965
• Parties: MONSANTO CHEMICAL COMPANY, Appellant, v. Edwin R. PAYNE, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

354 F.2d 965 (1966)

MONSANTO CHEMICAL COMPANY, Appellant, v. Edwin R. PAYNE, Appellee.

No. 21900.

United States Court of Appeals Fifth Circuit.

January 11, 1966.

Rehearing Denied February 23, 1966.

John N. Touchstone, Houston, Tex., for appellant.

George E. Pletcher, Houston, Tex., for appellee.

Before TUTTLE, Chief Judge, COLEMAN, Circuit Judge, and HUNTER, District Judge.

COLEMAN, Circuit Judge:

This is a diversity action for the recovery of damages alleged to have been sustained as a proximate result of negligence of the defendant. At the close of plaintiff's proof, the trial court denied defendant's motion for a directed verdict. The defendant thereafter offered no proof, but renewed the prior motion, which was again over-ruled. There was a jury verdict for the plaintiff and judgment accordingly. The trial court then denied motions for judgment notwithstanding the verdict and a new trial. For the reasons hereinafter set out, we reverse.

Plaintiff was employed by an independent contractor who was doing certain work at defendant's plant in Texas City, Texas. While engaged in cleaning porcelain insulators, he was burned by a flash fire allegedly caused by an electrical are. Plaintiff asserts, by his own opinion evidence only, that the are was caused by a crack in the insulator, which, in turn, had been caused by vibrations from company machinery.

The record is scanty, but so far as can be told from it plaintiff was the only witness who testified in the case. At the time of the accident, he was fifty-eight years of age and had over forty years of experience as an electrician and lineman. He had cleaned many insulators on other jobs. He knew it was hazardous work. During the first two days at work for his subcontractor employer at defendant's plant, he performed various odd jobs. On the third day, he was assigned to clean insulators on a rack of transformers serving defendant's plant. He began at about 8 o'clock in the morning and had completed the cleaning of nineteen insulators before he was burned at about the two o'clock hour. While cleaning the twentieth insulator, on which he had been at work for thirty minutes or more, the electrical "explosion", or arc, occurred, followed by the fire and the subsequent burns suffered by the plaintiff. During the insulator cleaning process, the electric current had not been turned off and the wires were hot. The plaintiff was aware of this and testified that he took every precaution known to him to avoid injury. He placed rubber blankets on the ground below him, put blind house on the space nearest the insulator he was working on, was wearing rubber gloves, and was standing on a scaffold made entirely of wood. He had an assistant observing him at all times for the purpose of giving warning if he came near a "hot phase". He had no metal on his body other than a belt buckle. Apparently these precautions were effective, as the plaintiff did not suffer electrical shock, but was, as stated, burned by the flames which erupted near him.

The insulators were being cleaned because they had become covered with some kind of hard, chemical-like crust to a thickness of approximately 1/16th of an inch. Plaintiff had been directed by his sub-contractor employer to remove this substance. The method pursued was that of wrapping a clean white cloth around a pine stick, so as to make a mop, dipping the mop in a nonconducting cleaning fluid known as "Varsol", and applying the chemical with a rubbing motion to the crust which had formed on the insulator. The Varsol would dissolve the crust, and sufficient application would ultimately result in the entire insulator being made clean.

The plaintiff, in his testimony, described the work as "dangerous" and "hazardous", but could not remember requesting that the current be turned off while he worked on the insulators. When plaintiff began work on the twentieth insulator he looked at it pretty carefully but observed no defect nor any indication of "electrical leakage". He had been rubbing the Varsol on the insulator for about thirty minutes when he heard a "buzz", indicating an electrical arc. The flash fire occurred instantaneously.

Neither before nor after the fire did the plaintiff actually see any crack or other defect in the insulator. He did not know, and offered no opinion, as to when the insulator had been last inspected or cleaned, if ever. From direct observation, that is, from seeing it, plaintiff could not state that a crack in the insulator actually existed, if one did exist, nor how long it may have been there. Qualifying as an expert in electricity, it was his opinion that the arc did, in fact, result from a crack in the insulator, and that the crack was caused by prolonged vibration from a nearby compressor station. He thought that this defect in the insulator, which he could establish only as a matter of expert opinion, was opened by the pressure of the cleaning action, causing the fiery results.

The defendant contended on its motion for a directed verdict that there was no evidence, or wholly insufficient evidence, of negligence on its part proximately causing the accident; that there was no evidence it had breached any duty owed the plaintiff as an invitee on its premises, engaged at the time as an employee of an independent contractor.

After the motions had been denied, and on the testimony above narrated, six separate issues were submitted to the jury, pursuant to which the jury found:

(1). Defendant had not been negligent in failing to clean and maintain the insulators in question;

(2). Defendant had not been negligent in failing to de-energize the electric line under the existing circumstances;

(3). Defendant was negligent in failing properly to inspect the insulators;

(4). Defendant was negligent in failing properly to warn plaintiff, that he had no actual knowledge of the hazards involved in cleaning insulator number twenty, and had no appreciation of the extent of the danger involved in cleaning insulator number twenty.

(5). The accident was not unavoidable; and

(6). Damages amounted to $15,000.

On the grounds previously raised defendant then moved for a judgment notwithstanding the verdict or, in the alternative, for a new trial. These motions were denied, hence this appeal.

A directed verdict for the defendant would have been permissible only if there was no evidence which, if believed by the jury, or any reasonable inferences to be drawn therefrom, which would authorize a verdict against it. In other words, for the purposes of the motion, the plaintiff's testimony as to any material fact had to be accepted as true and all reasonable inferences to be drawn therefrom had to be settled in favor of the plaintiff. Geddes v. Daughters of Charity of St. Vincent DePaul, Inc. (5 Cir., 1965), 348 F.2d 144; Herron v. Maryland Casualty Company (5 Cir., 1965), 347 F.2d 357; Turner v. Atlantic Coast Line Railroad Company (5 Cir., 1961), 292 F.2d 586; Swift & Company v. Morgan & Sturdivant (5 Cir., 1954), 214 F.2d 115, 49 A.L.R.2d 924.

This being the rule, we must view the evidence in that light most favorable to the plaintiff and then determine if it contained any evidence which would have supported a verdict in his favor. Geddes v. Daughters of Charity of St. Vincent DePaul, Inc., supra; Roosth v. Lincoln National Life Insurance Company (5 Cir., 1959), 269 F.2d 171, cert. denied, 361 U.S. 917, 80 S.Ct. 262, 4 L.Ed.2d 186.

Did plaintiff's evidence, accepting it as true, raise any question of actionable negligence which should have been submitted to the jury? American Hardware Mutual Insurance Company v. Vick (5 Cir., 1959), 268 F.2d 183; Georgia-Pacific Corp. v. United States (5 Cir., 1959), 264 F.2d 161.

We think not.

The litigants agree that the plaintiff was an invitee on defendant's premises.

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