Odum v. Haynes

• Decision Date: 10 October 1972
• Parties: Billy D. ODUM, Appellant, v. James P. HAYNES and David C. Kotler and wife, Joan Kotler, Appellees. Billy D. ODUM, Appellant, v. MEMPHIS LIGHT, GAS AND WATER DIVISION, et al., Appellees.
• Court: Tennessee Court of Appeals

Page 795

494 S.W.2d 795

Billy D. ODUM, Appellant, v. James P. HAYNES and David C. Kotler and wife, Joan Kotler,

Appellees.

Billy D. ODUM, Appellant, v. MEMPHIS LIGHT, GAS AND WATER DIVISION, et al., Appellees.

Court of Appeals of Tennessee, Western Section.

Oct. 10, 1972.

Certiorari Denied by Supreme Court May 7, 1973.

William I. McLain, Memphis, for appellant Billy D. Odum.

Robert M. Fargarson, Memphis, for appellee James P. Haynes.

Dale Woodall, of Evans, Petree, Cobb & Edwards, Memphis, for appellees, David C. Kotler and wife, Joan Kotler.

Leo Bearman, Frank B. Gianotti, William A. Sands, Memphis, for appellees, Memphis Light, Gas and Water Division, and others.

NEARN, Judge.

This is a plaintiff's appeal from a jury verdict for one of the defendants and from the Trial Court's action in directing a verdict for the other defendants.

Billy D. Odum filed one suit against the Memphis Light Gas & Water Division and another against James P. Haynes, and David C. Kotler and wife, Joan Kotler, for personal injuries sustained by him on September 16, 1967, while attempting to install a citizens' band two-way radio antenna at the rear of apartment No. 5, 1125 Frayser Boulevard, Memphis, Tennessee. The injuries sustained by the plaintiff were electrical shock and burns sustained when the antenna came in contact with or in close proximity to the power lines of the defendant utility company. The antenna was being erected by Odum and Haynes and the nephew of Haynes, for Haynes' benefit, at the rear of the apartment occupied by Haynes and owned by the Kotlers. The suits were consolidated for purposes of trial.

In substance, the first Count of the Declaration against the utility company charged the defendant with negligence in: (1) unnecessarily placing an uninsulated 7200 volt electric wire across private property and in dangerous proximity to an apartment building without any notice or warning whatsoever of the dangerous condition thereby created; and (2) in not placing the said electric wire underground. The second Count charges a violation of an ordinance of the City of Memphis governing the insulation of wiring.

In the Declaration against the Kotlers and Haynes, it was alleged that the defendants Kotler, along with the utility company, placed and maintained the uninsulated electrical lines in a negligent manner and, in substance, the same acts of negligence charged to the utility company in the first mentioned Declaration were charged to the defendants Kotler.

As to the defendant Haynes, he was charged with negligence in failing to warn plaintiff of the dangerous condition there existing and in negligently causing the top of the antenna to come into contact with the electrical energy carried in the wires by causing the top portion of the antenna to be moved into that field of energy while the plaintiff was grasping a lower portion of the antenna.

The utility company denied all acts of alleged negligence and averred that the plaintiff's negligence was the proximate cause of his injuries, or that the plaintiff was guilty of proximate contributory negligence, or that the combined negligence of Haynes, his nephew and the plaintiff was the efficient intervening and proximate cause of plaintiff's injuries. By Special Plea the utility company further defended on the grounds that the electrical installation was in excess of the standards as set out in the National Electrical Safety Code, and that the City Ordinance relied upon in plaintiff's Declaration had been repealed and the City Ordinance substituted for the repealed ordinance required compliance with the National Electrical Safety Code which had been in all things complied with by the defendant utility company. Further, that plaintiff knew of the location of the wire, the inherent danger, yet participated in the erection of the antenna in close proximity to the electrical wire and that said act was negligence on plaintiff's part. Further, that plaintiff knew or should have known that had the antenna been properly gronded, no harm would have come to him, yet he failed to use this safety precaution and with full knowledge assumed all risks of injury by reason of accidental contact with the electrical transmission line. By an amendment to the Special Pleas, the utility company also relied upon the provisions of the National Electrical Code of 1965 and averred that the manner in which plaintiff sought to erect the antenna was in violation of that code.

The defendant Haynes denied any acts of negligence on his part or any breach of any duty to plaintiff and averred that plaintiff had equal or superior knowledge of the dangers involved, but that if he, Haynes, was negligent, then plaintiff was negligent in like regard as each was a part of the same transaction with the same control and knowledge.

The defendants Kotler denied all responsibility for the accident or the condition of the electrical installation. It was averred in their Answer that an easement had been given by them to the utility company for the erection of an electrical transmission system over their property but that the Kotlers had nothing to do with the installation or the maintenance of the system. Further, that plaintiff's acts were the proximate cause of his injuries or proximately contributed to them or that the acts of the plaintiff and those acting with him were the effective and intervening cause of plaintiff's injuries.

The apparatus sought to be erected, which so far in this Opinion has been termed 'antenna', actually consists of a sectionalized push-up pole, to the top of which is attached the true antenna. The true antenna acts as an extension of the push-up pole with four 'fingers' or radials which extend at right angles outwardly for a distance of about eight feet. Technically speaking, the antenna consists only of the radials or 'fingers' and the shaft or pole to which they are attached. The shaft or pole of the true antenna is about seventeen (17) feet in length. The true antenna is affixed to and its base rests upon the topmost section of the push-up pole. The push-up pole sections fit one into the other and are extended in the manner of a telescope with each section of the push-up pole, from the base section upward, having a smaller circumference than the section into which it fits. In this Opinion, when we use the word 'antenna', we shall mean the entire apparatus unless otherwise designated.

At the close of the plaintiff's proof, the Court directed a verdict for the defendant Haynes and the defendants Kotler. At that time, a motion for a directed verdict was also made by the utility company but was denied. Proof was adduced by the remaining defendant utility company and that case was submitted to the jury which resulted in a verdict for that defendant.

Twelve Assignments of Error have been made in this Court. The first complains of the Trial Court's action in directing a verdict for the defendant Haynes and the defendants Kotler. The fourth complains of the Trial Court's action in withdrawing the issue or gross negligence on the part of the utility company from consideration by the jury. The remaining Assignments of Error complain of the admission of evidence or errors of either commission or omission in the Court's charge to the jury.

The proof shows that plaintiff Odum is a long-haul truck driver with no training or experience in the field of electricity. Prior to the date on which he sustained his injuries, plaintiff had purchased a citizens' band radio and antenna from a friend in Little Rock, Arkansas. When he purchased the radio and antenna, he observed the manner in which the antenna was disasembled by the seller. With this knowledge gained by observation, plaintiff was able to erect the antenna at his home and attach it to the radio.

The defendant, James P. Haynes, is also a long-haul truck driver and a friend of the plaintiff. Haynes purchased a citizens' band and an antenna identical to, or almost identical to, the one owned by Odum. Haynes, like Odum, had no training or experience in the field of electricity and, likewise, none in the field of erecting antennas. Knowing that Odum had erected his own antenna, Haynes, on the morning of September 16, 1967, called Odum and requested of him that he assist Haynes in the erection of the antenna that he had just purchased. The antenna was to be erected at the apartment of Haynes. Odum was reluctant to assist because his wife expected him to do some painting around the house that day. Haynes suggested that it would only take a few minutes to erect the antenna and that they could have the job done before Mrs. Odum returned from shopping. Odum agreed to assist Haynes. Haynes, along with his nephew, came by the Odum home and the three of them drove to the Haynes apartment. Haynes decided to affix the antenna at the southwest corner of the porch at the rear of the apartment. The building in which the Haynes apartment is located is a two-story apartment building. The rear porches of the apartments are located one over the other; that is, the floor of the porch of the top apartment serves as the ceiling of the porch of the lower apartment. The apartment building runs generally in an east-west direction and the roof of the porch of the top apartment appears to us to extend about four feet to the south of the side of the building proper. There are three metal posts or poles located along the porch which extend from the ground to the ceiling of the top porch. Facing the rear porches, they would appear somewhat like the Roman Numeral III with the floor of the top porch represented by a horizontal line drawn equidistant from the top and bottom: viz: Approximately ten feet south of the apartment building proper and approximately ten feet west of the south-west corner of the roof porch extension, there is located the utility pole of the defendant utility company. Approximately twenty-three feet west of the utility pole there...