Mrad v. Missouri Edison Co.

• Decision Date: 15 March 1983
• Docket Number: Nos. 43234,43257 and 43342,s. 43234
• Citation: 649 S.W.2d 936
• Parties: Richard MRAD, Plaintiff-Appellant, v. MISSOURI EDISON CO., and Southwestern Bell Telephone Co., Defendants-Respondents.
• Court: Missouri Court of Appeals

Page 936

649 S.W.2d 936

Richard MRAD, Plaintiff-Appellant, v. MISSOURI EDISON CO., and Southwestern Bell Telephone Co., Defendants-Respondents.

Nos. 43234, 43257 and 43342.

Missouri Court of Appeals,

Eastern District,

Division Five.

March 15, 1983.

Motion for Rehearing/Transfer to

Supreme Court Denied

April 15, 1983.

Application to Transfer Denied

May 31, 1983.

Godfrey P. Padberg, St. Louis, for plaintiff-appellant.

James Virtel, George Kosta, James Daugherty, St. Louis, for defendants-respondents.

KELLY, Chief Judge.

Richard Mrad (hereinafter appellant) appeals from order of the Circuit Court of the City of St. Louis, Division No. 5, granting respondents, Missouri Edison Company and Southwestern Bell Telephone Company, a new trial following a jury award of $3,000,000.00. Southwestern Bell Telephone Company (hereinafter Bell) also appealed from the order of the trial court denying its Motion for Judgment n.o.v. These two appeals were consolidated.

Appellant instituted this negligence action to recover damages for injuries he sustained while moving an aluminum ladder into or in close proximity to a bare uninsulated energized power line owned by Missouri Edison Company (hereinafter Missouri Edison) suspended 30 feet above the ground upon a wooden telephone pole owned by Bell.

Viewing the evidence from the standpoint favorable to the appellant, Tellis v. Union Electric Company, 536 S.W.2d 742, 744 (Mo.App.1976), the jury could have found that the appellant, an 18 year old youth, was employed as a camp counselor at the Easter Seal Society's Camp Daniel Boone in St. Charles County on July 16, 1977. He had earned superior grades while in high school. The camp for which he worked is a special facility operated for the purpose of providing physically handicapped children a typical summer camp experience and is heavily used during the summer months for this purpose. It contained approximately 40 acres of land. Open fields with adjacent wooded areas, a swimming pool, a lake, and 10 structures are on the property. These structures included a dining hall, five cabins, crafts lodge, farmhouse, log cabin, mobile home, maintenance shop, bathhouse, portable building and a small boat house. Trails wind throughout the grounds for hiking, pony riding and nature hunts. There is a ball field used, primarily for wiffelball, which adjoins the treeline containing the telephone pole where the occurrence took place. Although the camp itself has a rural appearance it is located in a "developing area," i.e. surrounded by newer suburban neighborhoods.

A utility easement, wherein the 30 foot high utility pole on which Missouri Edison's wires were strung, is located approximately on, what was at the time the pole was erected, the southern boundary of the camp. There is also an old barbed wire fence containing two or three strands of barbed wire which ran along this old boundary line. In the early 70's a strip approximately 200 feet wide was added to the south edge of the property. There is no apparatus for climbing on the pole nor were there signs of any kind on it. It was located in a patch of scrub trees and sticker bushes three to six feet behind the barbed wire fence mentioned hereinabove.

Missouri Edison's distribution system ran along the camp's western boundary and then proceeded eastwardly along the original southern boundary line of the camp property. The primary distribution line has two wires--1 primary phase wire (7200 volts to the ground) and one neutral wire (zero voltage). Each wire is a bare number 4 aluminum conductor steel-reinforced line. At a point approximately midway along the old south boundary of the camp, between the camper cabins and the crafts lodge, a transformer steps down the voltage to 120-240 volts and a triplex service cable extends from this transformer pole to an Easter Seal Society pole located near the bathhouse. The triplex service has three wires--2 black wires which are insulated for up to 300 volts and a bare neutral or messenger wire which supports the cable. The 2 insulated wires each have a voltage of 120 volts to ground. Missouri Edison's line ends at the top of the Easter Seal Society pole situated near the bathhouse. The wires coming down this pole to the electric meter are owned by the Easter Seal Society. The only wires or equipment owned by Missouri Edison at the camp were the primary and neutral wires, the connecting apparatus used to maintain these wires on the utility poles, the transformer, the triplex wire and the electric meter. All other wires or lines or other electrical equipment in the camp proper and running from one building to another were owned and maintained by the Easter Seal Society.

Missouri Edison's primary distribution system serving the camp is a bare-wire system and these systems are common throughout the United States because of the unavailability of insulated wire capable of carrying the voltage. Although there is available covered wire for 7200 volt service, the covering does not insulate the wire, and does not render the wire safe to touch and is treated the same as a bare conductor when it is approached by lineman. Missouri Edison's 7200 volt primary wire was 30 feet above the ground.

The facts of the occurrence for which appellant seeks damages are that in July of 1976, a baseball backstop was erected in the northeast corner of the activity field of the camp. Appellant, an 18 year old youth at the time, and Jerry Byrd, the Director of Camping for the camp, were laying out base paths at the field when appellant asked if he could attach a flag to Bell's utility pole positioned behind what was approximately left center field. Byrd knew that there was a power line on top of the pole and assumed that it was dangerous. He cautioned appellant to be careful of the wires. No one contacted Missouri Edison or Bell about appellant's intentions to mount the flag on the pole.

Following the evening meal on July 16, 1976, appellant and David Zurheide, a fellow camp employee, took a 32 foot aluminum extension ladder from the camp's maintenance shed and carried it across the activity field to the vicinity of the pole.

The barbed-wire fence which ran along the old southern boundary of the camp, mentioned hereinabove stood between the camp proper and the Bell utility poles and was approximately three to four feet from the utility pole in question. The east-west pole line that ran along the old southern boundary of the camp was filled with brush, scrub trees and sticker bushes. When appellant and Byrd had first discussed placing the flag on the pole they'd discussed removing brush from around the pole, but apparently that was not done.

After appellant and Zurheide arrived in the vicinity of the utility pole they adjusted the overlap of the 16 foot sections of the aluminum ladder to three or four rungs. They then rotated the ladder over the barbed wire fence and raised it against the pole. The ladder, at this time, was extended to approximately 28 feet. Appellant knew that there were electric wires on the top of the pole and he intended to keep the ladder away from the wires. He knew that he was raising the ladder toward the electric wires, but at no time did he look at the wires to ascertain whether they were covered or bare nor did he attempt to form any estimate as to where the top of the ladder might be in relation to the wires. He did not think that the ladder was tall enough to reach the height of the wires.

When they first started placing the ladder near the base of the pole it was only one foot from the pole. Appellant crossed the barbed wire fence, placed himself between the pole and the ladder, and attempted to move the ladder out from the pole. As he was so engaged his back was to the pole and he was facing the ladder with his hands on the ladder rails. He could not lift the ladder straight up, so he placed his left thigh against the metal rung to move it forward towards Zurheide who was standing in the field. During this process, appellant looked up and saw the top two wires and at that time it appeared to him that the ladder was below the bottom of the top two wires.

While attempting to increase the angle of the ladder with the pole, appellant heard what sounded to him like a jackhammer, and the camp lights went out momentarily.

Appellant was found lying unconscious on his stomach, the barbed wire fence beneath him and Zurheide was found lying dead in the field. The ladder had either come into direct contact with the primary line, or a flow of electricity from the line came across a contaminated ceramic insulator to the metal pole pin and then to the ladder, down the ladder and through appellant's body to the ground, or the electricity arced directly from the wire to the ladder.

Appellant sustained severe electrical burns with almost complete sensory motor loss of both wrists and hands, third degree burns of both big toes and second degree burns on his abdomen, and burns on his thigh and chest. He was also caused to undergo many painful operations including debridement and the amputation of three toes.

Appellant instituted this action against Missouri Edison and Bell and a jury awarded appellant damages against both defendants in an amount of $3,000,000.00. Both Missouri Edison and Bell filed timely motions for a Directed Verdict or, in the alternative, for a New Trial. Bell, in its motion, also included, as an alternative, a motion for judgment n.o.v.

The trial court sustained both defendants' motions for new trial on the ground that appellant's verdict director instructions failed to instruct the jury on the issue of isolation of the electric wires.

Appellant has appealed from this order granting the respondents' motion for new trial. On Bell's motion the two appeals were consolidated.

Appellant's first Point is that the trial court erred in granting the defendants a new trial on the ground that his verdict directing instructions ¹ were...